he DSBA has never worked as hard for its
members. In this edition of the Parchment,
you will see two detailed DSBA submissions
on the future education of solicitors and
the safeguarding on deprivation of liberty of
vulnerable persons.
The Legal Service’s Regulatory Authority has given
an opportunity to the DSBA and other stakeholders
to comment on how best the training and education
of solicitors can be modified and/or improved. This is
a golden opportunity and the DSBA has put forward
a suite of recommendations which will hopefully be
considered as part of the overall consultation process.
You can read the DSBA submissions on page 28.
With ongoing concerns about the safeguarding
of older people, persons with disability and
certain categories of people with mental health
issues, the Government recently announced a
public consultation on draft legislation relating to
deprivation of liberty of such persons. The DSBA,
thought its Mental Health and Capacity committee,
submitted a comprehensive document on the issue

and you can review this on page 10 of this edition of
the Parchment.
The winners of the 2018 DSBA th Annual Law
Book Awards were announced at an awards ceremony
in June. Our congratulations are extended to the
winners, and also to the shortlisted nominees in what
was a crowded field of outstanding authors. The current
range of legal textbooks available to assist practitioners
is of the highest standard. Our congratulations to Mark
de Blacam SC for his superb Judicial Review book
and to Brian Spierin SC for his winning book on the
Succession Act 1
and related legislation. On the
night, it was a fitting honour for the DSBA to bestow
recognition on Brian Gallagher and Alan Shatter for
their outstanding contribution to the law. They have
made immense contributions.
Have a great summer.

The DSBA, its contributors
and publisher do not
accept any responsibility
for loss or damage
suffered as a result of the
material contained
in the Parchment.

of an advertisement
in the Parchment does
not necessarily signify
official approval by the
DSBA, and although
every effort is made to
ensure the correctness of
advertisements, readers
are advised that the
association cannot be
held responsible for the
accuracy of statements
made or the quality of
the goods, services and
courses advertised.
All prices are correct at

time of going to press.
Views expressed are not
necessarily those of the
DSBA or the publisher. No
part of this publication
may be reproduced in any
form without prior written
permission from the
publishers.

DSBA Recommendations
on the future education
of Solicitors
The Dublin Solicitors’ Bar
Association recently made a
detailed submission to the Legal
Service Regulatory Authority (LSRA)
as part of a public consultation

Sonya Dixon examines case law
on liability for an employer arising
from a funding proposal

42
the Parchment 3

Message from the President

Summer
at Last –
Time to
Chill

W

e have plenty of articles
and pictures in this
edition of the Parchment
for you to peruse as you
lie out, or contemplate
lying out, on a beach in Dublin Bay or
Brittas Bay - with the only worry being
whether you have enough factor 0
If you don’t have time to turn (or scroll)
the pages, this message provides a precis
summary of all the activities that the DSBA
has been engaged in over the last uarter.
As you will see we have been very busy
Our CPD Programme has been in full
ow and runs now up to the end of July
when we break for the summer. We thank
our speakers and our members for their
continuing support of what are as ever, very
high uality seminars.
The DSBA Mental Health Committee,
led by its Chair Joan Doran, prepared and
submitted to Government in early May an
excellent paper on DOL (Deprivation of
Liberty) concerning vulnerable persons.
The DSBA was also consulted in May
on the Brexit Legal Services submission
to Government prepared jointly by the
Bar Council of Ireland and some of the
larger Dublin law firms, a very worthy
initiative designed to promote Ireland as a
destination for international legal services.
The DSBA Legal Services Regulation
taskforce, led by yours truly, in mid-June
prepared and submitted to the Legal
Services Regulatory Authority a detailed
submission in response to its consultation
on legal education in Ireland.
It has not been all work and no play so
to speak, as we were delighted to host on
22nd June in the Conrad Hotel the DSBA
midsummer party and Law Book Awards. We
had over 1 0 people in attendance for the
event which was slightly restructured this
year (no black tie), to create a more chilled
ambiance (it being midsummer after all ).
We were honoured to have Mr Justice
Gerard Hogan present the Law Book Awards
to each of the winners and yet again found
ourselves in the press (Irish Times) for
comments made at the event (this year by
Alan Shatter and last year by Mr Justice
Peter Kelly) on the Judicial Appointments

4 the Parchment

Bill. My thanks to Maura Smith, Elaine
Given, Keith Walsh, Matthew Kenny and
Laura Horan for all their work in organising
what was a most enjoyable event.
We were guests of the Belfast Solicitors’
Association on 1 th May as it hosted
the reactivated inter-solicitor association
golf competition in Malone Golf Club.
A wonderful claret jug trophy was
commissioned by the BSA and part funded
by the DSBA, and will be played for each
year going forward. Suffice to say that the
BSA won on the day, but there’s always next
year in Dublin Thanks to Eamonn Shannon
who organised the two DSBA teams, and
also for organising (with Hugh O’Neill and
Fiona Du y) the DSBA summer golf outing
on 2 th June in Luttrellstown Golf Club.
Our DSBA cricket team marched into
battle against the Bar in Leinster Cricket
Club on 2 th June in the second annual

John Buckley Memorial cricket match,
kindly sponsored by Beauchamps Solicitors.
A wonderful evening was had by all, even
though the DSBA team lost out by a whisker.
The event was honoured by the presence of
Claire Buckley, the widow of the late John
Buckley. My thanks to Council members
Tony O’Sullivan and Matthew Kenny for
organising the event.
May I also thank our Parchment
Committee led by Council member Gerard
O’Connell, and our editor John Geary
for bringing us this bumper edition of the
Parchment. Keep up the good work we say.
Finally, may I mark the very sad passing
recently of the late Judge (and former
solicitor) Gr inne O’Neill. Gr inne will
be very much missed by all of the legal
fraternity. May she rest in peace.
Robert Ryan, DSBA President

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Lady Liberty
Fiona McEntee, a Dublin-born lawyer is the founding and managing attorney
of McEntee Law Group, an established law firm that exclusively handles
US immigration matters from business, entertainment, and family-based
immigration to deportation defense and citizenship cases. Fiona was named in
201 as a rising star in immigration law on the Illinois Super Lawyer list and in
201 in New York as one of the Irish Echo s 0 Under 0. She is on the frontlines
of advocacy as a leading US immigration attorney for immigrants rights. The
Parchment’s Julie Doyle caught up with her for 20 minutes

Fiona, you are a diaspora success story
and your recent awards for 2018 include
the Illinois State Bar Association Elmer
Gertz Award for Human Rights as well as
one of Chicago’s Notable Women Lawyers
by Crain’s Custom Media. Can you tell us a
little about your background?
I was born and raised in Dublin. For my
undergraduate degree, I attended UCD where
I completed a BCL (International). During
my third year at UCD, I had the opportunity
to do an exchange programme in Chicago
at DePaul University s College of Law. After
that year I moved back to Dublin, completed
my degree in UCD, and vowed to return to
Chicago to become an attorney. In 200 I
moved back to the States and completed a
Juris Doctor (J.D.) at Chicago-Kent College of
Law. I was given the maximum of a year s law
school credit for my foreign law degree which
allowed me to complete the J.D. in two years. I
graduated from Kent in 200 and immediately
took and passed the Illinois bar exam.
Why did you choose a career in law?
Growing up, my dad s nickname for me was
Save-the-Whales . I was always passionate
about environmental and social justice and
looking back, it s no real surprise that I ended
up practising immigration law. However, I did
not come from a legal family and studying law
was not necessarily an obvious choice.
Going into my sixth year of secondary
school I thought about medicine, law and
some other things, but I had no firm plans
either way. On my mother s recommendation
I met with a career coach and after a full day
taking aptitude tests, he concluded that I
would be best suited for a career in journalism.
Given that lots of journalists have a primary
law degree, he recommended that path for me.
Let s just say that I m really glad I took his
advice way back when
6 the Parchment

What made you decide to make a
permanent move stateside?
Before taking part in the DePaul exchange
programme, I had never thought about
moving or working away from home.
However, from day one of my move, Chicago
truly felt like a second home. From a career
point of view, I really like the unified legal
profession in the States, and after spending
some time there in law school, I could really
envisage a career as an attorney there.
Whilst studying for your Juris Doctor
you worked in a number of immigration
clinics. Can you tell us about that work?
I first thought of immigration law as an
option when I saw it on the class list at
Chicago-Kent. When I was as UCD, there
was no option to study immigration and I
had never really thought of it as a distinct
practice area. When I saw it on the class, the
Save-the-Whales in me knew it would be a
great fit and I was absolutely right.
While at Chicago-Kent, I took all the
immigration classes and clinics that were
available. I worked at the law offices of
Chicago-Kent in the Immigration Law
Clinic, where I worked closely with business
and family immigration law attorneys. I
also did an internship at a pro/low bono
immigration clinic, where I was able to
attend citizenship interviews and work on
asylum cases. During my time at Kent, I
became absolutely positive that I wanted
to be an immigration lawyer and upon
graduation, I immediately began working
full-time in the field and haven t looked back
since.
You were a documented immigrant.
Were you aware of situations the
undocumented Irish faced?
Yes, I ve always been very aware of the
struggles of the undocumented immigrants,

Irish or otherwise. Since 200 , I have had
an active role in Irish Community Services
formerly known as Chicago Irish Immigrant
Support. I initially started as a board
member and now serve as its immigrant
attorney, hosting monthly pro bono clinics.
Since moving to the States, in addition to
practising immigration law, I have engaged in
activism for immigrants including attending
rallies and protests, lobbying in D.C. and
many more advocacy activities that have
become even more fre uent as a result of the
current administration s policies.
Upon qualification you received the
prestigious CALI Award, which is an
award that goes out to the highest
scoring student in each law school
class. What led you to set up your own
immigration practice?
Growing up in an entrepreneurial family
I always knew I wanted to run my own
business. Starting my own firm allowed me
to make a more personal connection with my
clients and allowed me to truly be the best
advocate I could be for them.
My law firm, McEntee Law Group, now
has a team of nine including my brother,
Ray, who originally ualified as a solicitor
in Ireland and later moved to Chicago in
201 to work in my practice. We exclusively
handle U.S. immigration matters from
business, entertainment and family-based
immigration to deportation defence and
citizenship cases. Our clients range from
technology CEOs to rock stars like The
Coronas and our satellite offices in Dublin,
Ireland, and Quito, Ecuador, ensure great
accessibility to our international clients.
I thoroughly enjoy both the legal advocacy
and the practice management side of the
business. I especially adore seeing our law
student clerks fall in love with this area of

Summer 2018 dsba.ie
Julie Doyle is Head of Legal
Services at Cluid Housing

20 Minutes With...

the Parchment 7

the law the way I did back in 200
You have now become a prolific
campaigner for immigration reform.
Can you tell us about the email you
received from the International Refugee
Assistance Project following the
implementation of President Donald
Trump’s executive order in January 2017?
Prior to the first travel ban, our bar
association AILA (American Immigration
Lawyers Association) received word that
the President would be signing an order
restricting travel for travellers from certain
countries. Although the details were
unknown, we began preparing and planning
and my colleague/brother Ray and I had preemptively signed up to be on an emergency
airport lawyer standby list through IRAP
(International Refugee Assistance Project).
On the morning of January 28th, I
received an email I will never forget:
Sender: International Refugee Assistance
Project
Subject: Emergency Airport Response for
Detained Refugees - REPLY NEEDED
Message: We’ve received word that it is now
DHS policy to detain with intent to deport
all arriving refugees . . . If you are available to
go to your designated airport NOW, fill out
this survey indicating your location and I will
follow up with an email connecting you to
others who will be joining you.
How did you and your colleagues mobilise
into action? How did you manage to
secure the names of those affected?
Ray and I drove out to O Hare Airport
together and along the way I started making
some calls to journalists and media persons
I knew. I explained the email and told
them that while we did not know exactly
what to expect, we thought it would be
pretty horrific. Little did we know then,
that Customs and Border Protection (CBP)
would be detaining green card holders and
US citizen babies for upwards of eight hours
based solely on this new executive order
that had been carelessly written and hastily
signed the night before.
On arrival at O Hare we set up an
emergency legal triage and people started
approaching us asking for help and
explaining that they had been waiting for
hours for family members. I became the
ad hoc media spokesperson for the O Hare
Airport Attorneys and I advocated live on
national television (MSNBC), international
and local news outlets for the release of our
clients and all the other detained individuals.
Our client that day was a green card
holder who was there to pick up his wife,
also a green card holder and their 18-month
old U.S. citizen baby who were arriving home
from a trip overseas. CBP detained his wife
and child for over eight hours and they were
only released after a judge in New York
issued a temporary restraining order (TRO).
8 the Parchment

Can you describe for us some of the
scenes you witnessed?
It was complete mayhem in airports all
over the States and the live media footage
captures just how chaotic it truly was. As
the hours went by, the outrage grew as did
the supporters and the protestors.
I made many calls including getting in
touch with my friend, Irish Senator Billy
Lawless who is based in Chicago and
has spent over 20 years advocating for
immigrants. Senator Lawless came out to
O Hare as did lots of Chicago congressmen
and supporters. My friend, Breand n Magee
from Belfast originally but working in
immigration in the States for many years,
also showed up. Breand n works as the
senior director of programs for the Illinois
Coalition for Immigrant and Refugee Rights
(ICIRR) and they brought busloads of
advocates with them out to O Hare within a
very short period of time.
I m so grateful for the supporters that day,
and always, I know it made a di erence and
the clients detained that day could hear the
chants of the crowd urging CBP to release
them. The entire airport was filled with
people who wanted to support the detainees
and their loved ones.
How long did you spend working at the
frontline of O’Hare International airport?
I was on the ground at O Hare for weeks
initially and thereafter, as one of the few
immigration attorneys on the team, I
remained on-call for months.
In a blow to the efforts of immigration
defence lawyers, the U.S. Supreme Court
recently ruled that the controversial
travel ban was within the scope of
Presidential authority under National
Security, by a 5-4 majority. What do you
believe is the impact of this ruling?
I am extremely disappointed and troubled
by the Supreme Court s decision to uphold
the travel ban. The decision endorses a
policy that is clearly discriminatory and
motivated by religious animus. The ruling
undermines the Constitution by allowing
this type of discrimination to come from
the highest office in the United States.
The Supreme Court s decision will have
a detrimental e ect – it will impact an
untold number of families, companies
and universities. It will keep families
apart, impair the U.S. economy and
prevent brilliant students from attending
universities in the States. It does nothing
to improve the safety of Americans while
it ruins our reputation as the Nation of
Immigrants worldwide.
A major part of President Trump’s
agenda is fighting immigration and
implementing a 'zero tolerance' policy.
The recent policy of separating children
from parents seeking asylum in the US
has sparked widespread outrage. What

was the purpose of the policy and do you
believe there was a lawful authority to
carry it out?
The purpose of the zero tolerance policy
is patently clear: they want to deter
individuals from seeking asylum in the U.S.
Further, despite what has been said by the
administration, there is absolutely no law
that re uires the President to separate
children from their parents. This is a
policy that was solely implemented by this
administration and they could have ended
it just as uickly as they implemented it.
There was no need for the dog and pony
show of an executive order that permits
indefinite family detention.
In relation to the separation policy, I
firmly believe that in addition to being
grossly inhumane to separate asylum seekers
who have travelled thousands of miles from
extremely dangerous conditions, from their
children, it is also against international law
and policy. The UN High Commissioner
for Human Rights has called this practice a
violation of the rights of the child.
After widespread criticism of family
separation, President Trump issued
an executive order instructing the
Department of Homeland Security to
maintain custody of parents and children
jointly. Do you believe this order will
solve the crisis?
No. This crisis was created by the
administration. The President could have
just stopped the policy and there would
have been no crisis to remedy. The executive
order really does nothing to end the
separation of families at the border; 2,000
children still remain separated from their
parents. There is little to no evidence that
the administration has a system in place for
reunification. The administration is showing
little empathy and it has yet to show that it
intends to resolve the humanitarian crisis it
alone created.
Finally, do you ever regret emigrating?
From the first day I started studying
immigration law, I knew that this was
my calling and I really consider it to be
a vocation. While the past 18 months
have been horrendously challenging, I
could never imagine doing anything else. I
describe practising immigration law as being
simultaneously soul destroying and also
immensely rewarding.
My team members, immigration
attorney colleagues and I go home every
night knowing that we re on the right
side of justice and history in the fight for
immigrants rights and when we do sleep, we
sleep very well, comforted by the knowledge
that we are truly making a di erence
As our team and practice grows, I know
that we are helping to build the next
generation of dirty immigration lawyers
How could I regret that P

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DSBA Submission on
Deprivation of Liberty
Safeguard
In March 2018 the Government announced the opening of a
public consultation on draft legislation relating to deprivation
of liberty. The draft legislative provisions outline proposed
safeguards for older people, persons with disability and certain
categories of people with mental health issues to ensure that they
are not unlawfully deprived of their liberty in residential facilities.
Here we set out the DSBA submission

Background
The DSBA is a strong advocate of solicitors in their
work on behalf of their clients and most particularly,
their most vulnerable clients. Through the formation
of the DSBA Mental Health and Capacity Committee
in 200 the DSBA has brought together a specialist
group of solicitors with a broad range of experience
in their respective fields. The Mental Health and
Capacity Committee actively educates and supports
solicitors in their professional roles. The DSBA
welcomes the movement towards greater legislative
protections for vulnerable persons in relation to the
deprivation of liberty and further compliance by
Ireland with the United Nations Convention on the
Rights of Persons with Disabilities (UNCRPD).
1. By order of a court;
2. Under the provisions of the Mental Health Act,
2001; or
. Under the provisions of the Infectious Diseases Act,
1
.
However, many people who do not fit within any
of the above categories find themselves in situations
whereby they are “de facto” deprived of their liberty
e.g. nursing home, residential care settings, etc.
The Assisted Decision Making and Capacity Act,
201 (“the 201 Act”) proposes, inter alia, to extend
the circumstances whereby a person may be legally
deprived of their liberty and introduce a process of
safeguards regulating any such deprivation of liberty.
Such proposed safeguards are commonly referred to as
Deprivation of Liberty Safeguards (DOLS).

Consultation
The DSBA welcomes the public consultation being
undertaken by the Department of Health and sets
out below the initial views of the DSBA in response
to the uestions raised in the Department of
Health’s Deprivation of Liberty: Safeguard Proposals
12 the Parchment

Consultation Paper (201 ) and the publication of the
Preliminary Draft Heads of Bill on Part 1 of the 201
Act.
It has been a difficult journey for Irish society to right
many of the wrongs committed to the most vulnerable
persons within our community. The proposed legislation
will go far to providing tangible safeguards and protections
for all of us who find ourselves dependent on others.
Given that the issues are so far reaching this
submission is one made in the hope, whether through
further public consultations or otherwise, that there will
be further opportunities for the DSBA to contribute to
considerations of this topic.

Definitions
1.1 Do you have any views on the definitions
currently included in this draft Head?
1.2 In particular, do you have any views as to the
types of healthcare professionals that should be
included within the definition of “other medical
expert”?
1.3 Do you have any other views specific to Head 1?

Response
The DSBA recommends:
1.1 The definition of “person in charge” re uires to be
explained more precisely. For example, is it proposed
that the “person in charge” be the CEO of an
organisation with responsibility for a relevant facility or
the person supervising a ward on a particular shift at a
relevant facility
The definition of “relevant facility” re uires to be
comprehensive enough to include the wide variety
of residential/therapeutic settings now occupied by
vulnerable persons.
The definition of “relevant person” must be
considered in the light of the fact that there is always a
presumption of capacity. There should be consistency

Summer 2018 dsba.ie

News

in definitions throughout the legislation.
1.2 The definition of “other medical expert” may not be
appropriate as a “medical expert” is not re uired
to decide whether a person lacks decision making
capacity. The 201 Act sets out the legal test with
regard to decision making capacity, whereas a
medical diagnosis is re uired in relation to mental
illness. It should be made clear that “lack of decision
making capacity” is not a “mental illness”. Similarly a
person with a mental illness may not lack capacity.
Given the developments in medical practice
to move towards multi-disciplinary teams, it
may be more appropriate to refer to “health care
professionals” rather than “other medical expert”.

(j) any other person re uests a capacity assessment.

Procedure for Routine Admission of a
Relevant Person to a Relevant Facility

2.1 Do you have any views specific to Head 2?

4.1 Do you think the term “under continuous
supervision and control” should be defined?
If so, what should this definition include?
4.2 When the person in charge has reason to
believe that a relevant person may lack
capacity to decide to live in a relevant
facility, who should be notified with a view
to affording them the opportunity to make
an application to court under Part 5 of the
Act? This issue also arises in Heads 3(3),
7(4) and 8(1).
4.3 Do you have any other views specific to
Head 4?

Response

Response

The DSBA recommends:
2.1 That a comprehensive admission procedure be
applied to all admissions to a relevant facility, so
as to facilitate proper regulation of all admissions.
Such a comprehensive admissions procedure will
facilitate identification of any possible “voluntary/
full capacity” admissions which do not meet the
specified criteria for such admissions.
That relevant persons may only be admitted/
continue to reside in relevant facilities which are
independently monitored by a State body.

.1 The DSBA considers that the term “under
continuous supervision and control” should be
defined and references the following definition
included in the English and Welsh Law
Commission consultation paper:
Restrictive care and treatment should include, but should
not be limited to, any one of the following:
1 continuous or complete supervision and control
2 the person is not free to leave
3 the person either is not allowed unaccompanied, to
leave the premises in which placed including only
being allowed to leave with permission or is unable, by
reason of physical impairment, to leave those premises
unassisted
barriers are used to limit the person to particular areas
of the premises
5 the person’s actions are controlled, whether or not
within the premises, by the application of physical
force, the use of restraints or for the purpose of such
control the administering of medication – other than in
emergency situations
6 any care and treatment that the person ob ects to
verbally or physically
7 signi cant restrictions over the person’s diet, clothing
or contact with and access to the community and
individual relatives, carers or friends including
having to ask permission from staff to visit – other
than generally applied rules on matters such as visiting
hours
Persons being dealt with under Parts 1 – 12 of the
201 Act and those under Part 1 should be treated
e ually and the legislative provisions be applied
consistently.
.2.The DSBA suggests that the following apply:
Capacity in the first instance to be assessed by an
independent assessor. With a process in place to
review such assessment within a period of ten to
1 days.
All notifications under the legislation be
consistent.
In emergencies a relevant person may be
admitted to a relevant facility for a short period
of time in order to facilitate an assessment.
Definition/s of an “emergency” or “urgent”

Application and Purpose of this Part

Person’s Capacity to Make a Decision to
Live in a Relevant Facility in Advance of an
Application to Enter the Relevant Facility
3.1 Do you have any views specific to Head 3?

Response
.1 This issue in the first instance will be dependent on
the circumstances. Where a uestion of a relevant
person being admitted to a relevant facility is being
considered, the DSBA proposes that a capacity
assessment should take place in any of the following
situations:
(a) The relevant person re uests a capacity assessment;
(b) the relevant person expresses a desire not to be
admitted to the relevant facility;
(c) the relevant person’s will and preferences are
unknown;
(d) the person in charge believes there is doubt about
the relevant person’s capacity to consent;
(e) the relevant person’s decision making assistant,
co-decision maker, decision making representative,
designated health care representative or attorney
re uests a capacity assessment;
(f) a person named by the relevant person as a person
to be consulted re uests a capacity assessment;
(g) a person who has recently cared for the relevant
person on an extensive basis to be defined re uests
a capacity assessment;
(h) an employee of an inspection body re uests a
capacity assessment;
(i) an officer of the director of decision support
re uests a capacity assessment;

It has been a
difficult journey
for Irish society
to right many
of the wrongs
committed
to the most
vulnerable
persons within
our community

the Parchment 13

The court
did not
consider the
conduct of a
body acting
outside its
jurisdiction
to be
“inappropriate”
in the sense
intended by
the definition
of bullying

situation to be clearly defined and consideration
given to the decision in “PL” and the Mental
Health Act, 2001.
All decisions to admit/continue to admit to a
relevant facility to be subject to review at least
every six months.
Applications to court may be made at any stage of
the process.
. The DSBA does not support the draft provision
which would permit an attorney under a
registered power of attorney or a decision-making
representative to authorise the deprivation of a
person’s liberty.
The DSBA references the review procedures
a orded to persons who are the subject
of admission/renewal orders under the
Mental Health Act, 2001 and the successful
implementation of same into systems and
procedures of approved centres.

Procedure for Admission of a Relevant
Person to a Relevant Facility in Urgent
Circumstances
5.1 In subhead (1), what are your views on the
proposed circumstances in which an urgent
admission can be made?
5.2 In subhead 2(b), should a health
professional other than a registered medical
practitioner be able to provide medical
evidence? If so, what type of healthcare
professional? This issue also arises in Head
6(2).
5.3 In subhead (7), who should make the
application to court if no one else does so?
Do you have a view on the proposed role
of the Director of the Decision Support
Service? This issue also arises in Heads 7(6),
7(11) and 8(3).
5.4 Do you have any other views specific to
Head 5?

Response
.1 See .2 above
The relevant person must have been personally
examined by a medical professional.
.2 The DSBA submits that only a registered medical
practitioner should be able to provide medical
evidence upon which decisions are made and be
re uired to consult relevant specialists where
appropriate.
. Applications to be made by the relevant person’s
family, next of kin or relevant facility and not by
the Director of Decision Support Services having
regard to the provisions of
–
of the 201
Act.
. The DSBA submits the time limits in the section
be shortened. The current draft Heads of Bill
proposes detention for up to 2 days without
review.

Procedure for Making an Admission
Decision
6.1 Is the evidence of one medical expert
14 the Parchment

sufficient?
6.2 Do you have any other views specific to Head
6?

Response
.1 The DSBA supports the proposal of at least one
medical expert and a healthcare professional; and
where appropriate, a relevant medical specialist,
would be sufficient.
.2 The nature of the health/mental conditions
grounding an application for an admission decision
should be stated.
The bill should provide that an admission decision
shall only take place as a last resort and only if the
following conditions are fulfilled:
A. There has/have been a capacity assessment/s;
B. The relevant person has been a orded the
opportunity to provide his/her own independent
capacity assessment;
C. The capacity assessor has found that the relevant
person lacks capacity to decide on whether to enter
the relevant facility;
D. The relevant facility is the most appropriate available
for the relevant person in light of their needs;
E. The admission decision is proportionate to the risk
of harm involved.
F. Either of the following applies:
a. it would have been the relevant person’s will and
preference to enter the relevant facility taking
account of the principles in section 8 of the Assisted
Decision-Making (Capacity) Act 201 ; or
b. having regard to the right to liberty, that entry to the
relevant facility is necessary for the protection of life
of the relevant person, for protection from a serious
health threat or for the protection of other persons;
G. Consideration be given to the guiding principles
including the following:
a. The enjoyment of the highest attainable standard of
health, with the relevant person’s own understanding
of his or her health being given due respect;
b. Autonomy and self determination;
c. Dignity (there should be a presumption that
the relevant person is the person best placed to
determine what promotes/compromises his or her
own dignity);
d. Bodily integrity;
e. Least restrictive care.
The DSBA submits that provision should be made for
the publication of redacted court decisions made under
this part of the Bill.

Persons Living in a Relevant Facility
7.1 In subhead (2), do you have views on how
the issue of fluctuating capacity should be
addressed?
7.2 In subhead (2), do you have a view on the length
of time that would be considered a “short
period”? This issue also arises in Heads 7(8),
7(12) and 8(5)
7.3 Do you have any other views specific to Head 7?

Response
.1 The DSBA is of the view that if the relevant

Summer 2018 dsba.ie

News

person regained capacity the admission order re uires to
be revisited. Heads ( ) to (11) should be replaced with a
provision re uiring that if the circumstances change so that
the relevant person no longer satisfies the conditions for
admission, the admission order should be discharged and
arrangements be made to facilitate the new status of the
relevant person.
.2 The DSBA submits that the “short period” specified in Head
(2) and other subheads should be a period of 2 hours.
In the event that Head (11) is retained, the DSBA
submits that the two 21-day periods in Head (11) should
be shortened to two periods of 1 days.

Transitional Arrangements for Existing Residents
on Commencement of this Part
8.1 Do you have any views specific to Head 8?

Response
8.1 The DSBA submits that the 12-month period proposed in
Head 8.1 is appropriate.
Whereas the DSBA considers that all persons should be
treated e ually including all those currently residing in relevant
facilities, the DSBA also appreciates the practicalities involved
in transitional arrangements.

Review of Admission Decisions
9.1 Do you have any views specific to Head 9?

Response
.1 The DSBA supports the provision of a robust review
process including:
Six monthly internal reviews;
Audited reviews by an appropriate public body to include
samples of redacted decisions to admit and continue care;
and
Court applications may be made at any stage of the process.

Chemical Restraint and Restraint Practices
10.1 Do you have any views specific to Head 10?

Response
10.1 The DSBA supports the prohibition of chemical restraint
in Heads 10(1) and (2).
In Head 10( ), guiding principles regarding the ministerial
regulations on restraint practices should be specified.

Head 11 , Records to be Kept

11.1 Do you have a view on the types of records that
must be kept under this Head?
11.2 Do you have any other views specific to Head 11?

Response
11.1 The DSBA supports Head 11.
11.2 The DSBA submits that provision should be made for
the release of the relevant person’s records to any legal
representative appointed by the relevant person or for the
relevant person in advance of any hearing or review.
The DSBA supports Head 12 and 13.

General Questions
14.1 A number of the Heads - 5(2) (b), 5(3), 5(4), 5(7),
5(8), 7(6), 7(9), 7(11), (8(1) and 8(3) - set down

timeframes within which certain actions must
be taken. Do you have a view on any of these
proposed timeframes?
14.2 The draft Heads apply to older people, persons
with disabilities and people with a mental health
illness. In terms of timeframes and in light of the
existing provisions of the Mental Health Act 2001,
should those with mental health illness be treated
differently to others?
14.3 Do you have any other views on the draft
provisions?

Response
1 .1 The DSBA has expressed its view on the relevant
timeframes provided under the various Heads above.
The Association proposes it should be clarified that any
advance healthcare directive prepared by the relevant person
continues to apply following the making of an admission
order. In addition, the role of any decision-making assistant,
co-decision maker, decision-making representative, designated
health care representative or attorney will continue to apply.
The DSBA submits that the bill should provide that
decisions to admit to a relevant facility may be appealed to
a court; and further that a relevant person may also apply to
court to challenge continuation in a relevant facility at any
time. Access to court for such applications to be within a short
timeframe and supported by legal representation. Such legal
aid to be provided in a manner consistent with the 201 Act.
The DSBA submits that written information to be
furnished to the relevant person setting out:
(i) The intention to apply for; and
(ii) Making of the admission order.
Such information to include the applicant’s details, the
basis of the decision and the duration of admission etc. Such
information to also be provided in a way that is appropriate to
the circumstances of the relevant person.
In addition, written information on reviews and appeals
must also be provided together with details of the monitoring
body.
1 .2 The protections a orded to persons under the Mental
Health Act, 2001 have served to support persons who
are the subject of admission/renewal orders under that
Act. Relevant persons who may be detained under the
provisions of the 201 Act would expect to be a orded
the same protections.
1 . Regulations should be “shall” and not “may” to ensure
clarity and consistency.
It would be contrary to the ethos of the role of the Director
Decision Support Service for the director to make or direct
applications for admission orders.
The DSBA supports the provision of a campaign to provide
information and education to the public regarding deprivation
of liberty safeguards.
The Committee has considered the option of a courtsbased system versus a tribunal/review board system of
admissions. The merits and pitfalls of each system have been
exhaustively explored by the Committee. It has not been
possible for the Committee to reach a consensus opinion in
respect of either option.
The DSBA wishes to thank Joan Doran, Chair of the DSBA
Mental Health and Capacity Committee and all members of
the committee for their hard work and e ort in drafting and
finalising the DSBA submission. P
the Parchment 15

Post Brexit
Advantage
Joe O’Malley assesses the position of Ireland as a venue for
international arbitration after Brexit

Current Dominance
Choosing the seat of arbitration is a crucial
component of international trade. The importance
of this choice was neatly stated by the US Supreme
Court in remen v apata Off-Shore Co 07 U S 1, 13-1
1972 the elimination of all such uncertainties by agreeing
in advance on a forum acceptable to both parties is an
indispensable element in international trade
Undoubtedly, London has been the most dominant
choice as the seat for international arbitration taking
a
share of the market, according to a survey done
by Queen Mary University of London in 201 . English
law is the most commonly used law in international
business and dispute resolution worldwide, with 2
of the world’s 20 legal jurisdictions using English
common law for dispute resolution according to the
survey. Reasons for this dominance include:
1. Reputation and experience of English judges,
2. Prevalence of choosing English law as applicable
law in international commercial agreements,
. Efficacy of remedies available under English law,
. Procedural e ectiveness of the English courts,
. Independence and impartiality of the judiciary,
. English language is the lingua franca of international
commerce.

The Brexit Effect
While it’s still difficult to make any sense of Brexit,
one of the core features of the Brexit vote appears
to have been the desire to take back control of
UK law and bring an end to the jurisdiction of the
Courts of Justice of the European Union when the
UK leave the European Union – expected in March
16 the Parchment

201 . Brexit undoubtedly poses a threat to London’s
dominance in the area of international arbitration.
Many commentators (particularly those involved in
international arbitration in London) contend that
Brexit will not impede international arbitration in
London. Some even argue that London may become
more popular given the ability of English courts to
revert to anti-suit injunctions (which the Courts of
Justice of the European Union outlawed in Alliance SpA
& Others v West Tankers Inc Case C-1 5 07 and London’s
continued ability to enforce arbitration awards under
the New York Convention which they contend will
remain una ected by Brexit.

Close Scrutiny - Enforcement
While the arbitration community in London is
confident about its future and indeed has good reasons
to maintain that confidence, one area of particular
importance which may a ect parties choosing London
as a seat of arbitration, is the ability to enforce the
resulting award or related courts orders against
the losing party in respect of its assets outside the
jurisdiction of the seat of arbitration.
The UK Ministry of Justice in a survey completed
in 201 , noted that the enforcement of a judgment as
against the assets of the counter party was a significant
and contributing factor in parties determining to
choose English law and the English jurisdiction for
dispute resolution. However, upon the UK leaving the
European Union, it will su er a 1 reduction in the
number of jurisdictions with whom it has reciprocal
enforcement arrangements.
Traditionally, arbitration awards made in the UK

Summer 2018 dsba.ie
Joe O’Malley is partner and head of the Commercial Litigation and Dispute
Resolution team at Hayes Solicitors. He is a council member of the DSBA

have been easily converted into an English court
judgment pursuant to Section (2), Arbitration Act
1
. This court order could then be easily enforced
in other jurisdictions pursuant to international
agreements held by the UK with those other
jurisdictions.
Within the European Union, the Recast Brussels
Regulation (introduced on 10th January 201 )
provides for a very simple, streamlined enforcement
procedure whereby a judgment creditor is now only
re uired to present a copy of the judgment and a
standard form certificate issued by the court which
granted the court order. It can then begin whatever
enforcement measures are available under the local law
of the member state in which it will be automatically
recognised and enforceable.
Following completion of the Brexit process and
absent any replacement agreement, the UK will be
unable to rely upon this regime for recognition and
enforcement of its judgments and orders in other
member states. But, the UK can continue to rely upon
the New York Convention for enforcement of the
arbitral award.
While this is a viable mechanism for enforcement,
there are a number of important considerations and
potential shortcomings:
Even though a country may have signed or acceded
to the New York Convention, it may not have
enacted domestic legislation giving e ect to these
obligations, thereby rendering enforcement within
the jurisdiction difficult.
Where national legislation is enacted to give e ect
to the New York Convention, such legislation can

di er from country to country. For example, the
courts of India will only enforce foreign awards if
they have been issued by a New York Convention
country that has also been notified in India’s
official gazette as being a country to which the
New York Convention applies.
A country may have its own distinct procedures
for enforcement of foreign awards with particular
procedural re uirements.
The provisions within the New York Convention
are expressed in broad general terms and do not
contain definitions of key terms. Further, national
courts in di erent countries have reached di ering
conclusions about what the same terms mean.
Most particularly, the “public policy” ground
for refusing recognition and enforcement has
been interpreted in some countries in a very
wide fashion, whereby certain states will refuse
to enforce awards that seem contrary to the
fundamental policy of their laws, or international
laws to which they subscribe, or justice and
morality as interpreted by their courts.
It is conceivable that if the courts of England
and Wales were to resurrect the anti-suit injunction
type order in con ict to the Courts of Justice of the
European Union in West Tankers, then enforcement
of the arbitration award in a member state of the
European Union thereafter, could be refused under
the New York Convention on the basis that it is
contrary to European Union law.
Similarly, in the event that the arbitral award
made in London does not have proper regard
for mandatory laws of the European Union in

Arbitration

Upon the
UK leaving
the European
Union, it will
su er a 1
reduction in
the number of
jurisdictions
with whom it
has reciprocal
enforcement
arrangements

the Parchment 17

While there
is no question
of Dublin
replacing
London as
the forum of
first choice for
international
dispute
resolution,
Dublin will
nonetheless
have
significant
advantages
over London
post-Brexit
with regard to
recognition
and
enforcement
particularly
within the
European
Union

circumstances where they may have produced a
di erent outcome in the case (on the basis that
England and Wales will be no longer be subject to
those laws), then that could also be deemed a reason
for refusal to recognise and enforce the resulting
arbitral award in a European Union member state.
In addition, the English courts have broad
powers in support of arbitral proceedings under
the Arbitration Act 1
in terms of facilitating the
appointment of an arbitral tribunal, ordering interim
measures such as injunctive relief, hearing challenges
to the validity of any award and upholding the finality
of an award. How far such court orders in support
of arbitration will be enforceable in other member
states and beyond, remains to be seen. Certainly,
in the event that such orders are in con ict with
provisions of European Union law, then one can see
difficulties in relation to the enforcement of such
orders within the European Union.

Other Practical Concerns
After Brexit, it is unclear as to how or to what extent
the UK courts, when called upon to provide support
in relation to arbitral proceedings in the UK, will
have any proper regard to European Union legal
issues arising.
Where the English courts are called upon to
support an arbitral process in terms of making a
variation to an arbitral award under Section 1,
Arbitration Act 1
, enforcement of this varied
award may well prove to be imbued with difficulties
and not easily enforced in other jurisdictions.
The English courts have also provided very useful
assistance to complex international arbitrations
under Section , Arbitration Act 1
by
determining preliminary points of law or seeking
guidance from the European Courts on a point of
European Union law. One must seriously doubt
whether that can be done post-Brexit. It is generally
the case that arbitral tribunals themselves are not
permitted to refer a point of law to the Courts of
Justice of the European Union for preliminary ruling
on the application of European Union law. This may
well leave a deficit in relation to resolution of points
of European Union law.
One of the great attractions of London as a seat for
international arbitration is the availability of highly
rated legal specialists often practising in the area of
European Union law. It must be acknowledged that
there is a real threat to the exodus of such specialists
from the UK post-Brexit.

Arbitration in Ireland
Most of the factors that commend the English legal
system to international arbitration may also be found
in Irish law and the Irish courts system. The Irish
legal system like its English counterpart, is rooted in
common law with much of its statute law re ecting
UK statutes. English and Irish case law are regularly
cited in each otherâ&#x20AC;&#x2122;s courts. The procedures operated
by the Irish courts and the remedies available under
Irish law are similarly commercially focused to those
which pertain in the UK legal system. It is also of
importance that English, the lingua franca of business
is the de facto language of the Irish courts system.
Ireland will continue to be a member of the
18 the Parchment

European Union and legal proceedings before the Irish
courts continue to enjoy the benefits of the Recast
Brussels Regulation and also the Lugano Convention
which will provide for:
Recognition of the exclusivity of jurisdiction arising
out of the partiesâ&#x20AC;&#x2122; choice of jurisdiction (irrespective
of their domicile),
The benefit of the lis alibi and pendens rules which
prevent the courts of other member states from
seeking to assert jurisdiction over the disputes
between the parties,
The availability of interim protective measures such
as merava injunctions, freezing assets pending the
outcome of the arbitral process, and
The ready, reliable and expeditious enforcement of
any court orders made on foot of the arbitral process
throughout the European Union without those
member states being entitled to look behind the
order or to revisit the merits of the dispute.
Ireland has a long history of arbitration, its first
Arbitration Act having been passed in 1 8. Article
2 (2) of the Irish Constitution 1
states that Ireland
a rms its adherence to the principle of paci c settlement of
international disputes by international arbitration or udicial
determination . In 1 81, Ireland became a contracting
party to the New York Convention (NYC 1 8). In
2010 Ireland adopted a modern Arbitration Act which
incorporated the United Nations Commission on
International Trade Law (UNCITRAL) Model Law on
International Commercial Arbitration (1 8 ).
In this way, Ireland has e ectively modernised
its arbitration laws to conform to international
commercial arbitration features and practices and it
has harmonised its arbitration laws with other modern
arbitration countries.
Perhaps most importantly, the Irish Arbitration Act
2010 and the various pronouncements by the superior
courts in Ireland clearly demonstrate the minimal
power of the courts to intervene in the arbitral process
and they exhort and mandate that Irish courts are
supportive of the arbitral process. Even prior to the
introduction of the 2010 Act, it was stated by the
Supreme Court in Ireland in eenan v Shield Insurance
Company Limited 19 9 IR 9 that:
Arbitration is a signi cant feature of modern commercial
life there is an International Institute of Arbitration and
the eld of international arbitration is an ever expanding
one It ill becomes the courts to show any readiness to
interfere in such a process if policy considerations are
appropriate, as I believe they are in a matter of this kind,
then every such consideration points to the desirability of
making an arbitration award nal in every sense of the
term
This is aptly illustrated with reference to the
following important features in the Arbitration Act
2010:
In adopting UNCITRAL Model Law, the grounds
for setting aside an award in Ireland are limited
to those contained in Article
where there is
incapacity; no proper notice of appointment; the
arbitrator exceeding the terms of the submission to
arbitrate; the composition of the Arbitral Tribunal
not being in accordance with the agreement of the
parties; or the award being in con ict with the public
policy of the Irish State. On the other hand, Section
of the Arbitration Act 1
applicable in England

Summer 2018 dsba.ie

Arbitration

and Wales permits an appeal to the English courts on a
point of law adding the potential for an additional layer
of costs and delay in the arbitral process. For reasons
discussed earlier, the difficulties faced by recognition
and enforcement of any resulting court order postBrexit adds further complexity to this arrangement.
Under the Arbitration Act 2010, the High Court in
Ireland is e ectively a “one-stop shop” when it comes
to the main arbitration-related applications with there
being no appeal to the Court of Appeal or Supreme
Court. Again, this contrasts with the potential for an
appeal in England and Wales for many arbitrationrelated applications to the Court of Appeal and then
on to the Supreme Court (formerly the House of
Lords).
The Arbitration Act 2010 provides that the parties
to an arbitration agreement choosing Ireland as the
seat of arbitration may make such provision as to
costs as they see fit, whereas the Arbitration Act 1
in England and Wales provides that any agreement
whereby a party is to pay the whole or part of the costs
“in any event” is void unless it has been agreed after
the dispute has arisen. It is submitted that the position
which prevails in Ireland in this regard provides for
greater respect to the autonomy of the parties.

Concluding Remarks
In broad terms, there are two elements for consideration
in deciding upon the seat for international arbitration.

The first involves consideration of the national
legal system and arbitration law and the attitude
of the courts within that country to arbitration.
It’s arguable that the advent of Brexit brings
uncertainty to London’s continued dominance as
a forum for international arbitration, particularly
having regard to the enforceability of awards
where the dispute has some European Union legal
dimension.
The second element involves a consideration
of non-legal factors such as logistics, neutrality,
convenience and familiarity and the ualifications
of arbitrators and practitioners. While this
element is more subjective, it is common case
that being an English-speaking, common law
jurisdiction remaining within the European Union
with a well-respected legal system with many
similarities to the UK legal system, Dublin as a
seat for international arbitration would represent
the closest comparator to London.
In the final analysis, while there is no uestion
of Dublin replacing London as the forum of first
choice for international dispute resolution, Dublin
will nonetheless have significant advantages over
London post-Brexit with regard to recognition and
enforcement, particularly within the European
Union. In this way, Dublin may not so much
compete with, but rather complement London as a
forum for international arbitration. P
the Parchment 19

Revenue
Audit
of your
Practice
Practically every member of the DSBA has been the subject
of or been observed in the course of their work as part of
a Law Society inspection. However, a Revenue audit is a
di erent kettle of fish. Susan Martin gives insight into her
personal experience and provides useful advice

I

have been in business on my own since 200 , so
I was probably overdue a Revenue audit when
I got the envelope with the harp on it in early
December 201 . Cue much weeping, gnashing
of teeth, googling “what to do for a revenue
audit” and moaning about it in the pub. One of my
pals, fed up of hearing about it for the umpteenth
time, said “Sue, treat it as a free compliance check
by the State, change the record and get a round in”.
Having reorganised my thoughts accordingly, I got
down to the business of preparing for the big day
The correspondence from Revenue indicated that
the audit would take place in January (about four
weeks away) over a period of up to four days and
also indicated which taxes would be reviewed. Such
audits are authorised in accordance with Revenue’s
powers pursuant to Part of the Taxes Consolidation
Act 1
as amended. In my case it was all taxes for
the previous two years. I rang Revenue to confirm
that I would be available on the dates allocated and
asked about the procedure involved. They told me
that I would be visited by a Revenue official and

20 the Parchment

possibly a second member of revenue sta . I asked
if they could send over a list of documents that the
inspector would require and they very kindly sent
over a list, some of which did not apply as it related
to corporation taxes.
In preparation for the audit I checked the primary
legislation (Taxes Consolidation Act 1
) and
reviewed the Revenue Commissioner’s guide to
being audited. This document very usefully gives a
definition of a Revenue audit which is as follows:
A Revenue audit’ is an examination of;
• a tax return
• a declaration of liability or a repayment claim
• a statement of liability to stamp duty
• the compliance of a person with tax and duty
legislation.
The tax payer has a responsibility to keep adequate
records to support the taxes returned (Section 88
Taxes Consolidation Act 1
) and accordingly,
the Revenue audit measures the records against the
returns. I decided to look at each of the tax headings
under which I had made returns in order to assess

Summer 2018 dsba.ie
Susan Martin is principal of Martin Solicitors. She
is a council member of the DSBA Executive

what paperwork I should get out to vouch.
1. VAT
AT charged by solicitors on the provision of
legal services is 2
(unless you are running a
co ee shop on the side).The calculation of the
AT is measured on the AT charged on invoices
less the AT paid out on business expenses.
In order to vouch this I provided the Revenue
auditor with:
(a) Costs journals for each month of the period
being audited. copies of each invoice issued .
(b) The creditorsâ&#x20AC;&#x2122; folders for each month of the
period being audited. copies of each invoice
paid .
(c) A printout of the AT returns for each year.
(d) The che ue stubs for the office bank account.
(e) The office bank account statements for the
entire period being audited.
(f) Bank reconciliation statements for the office
account.
(g) Che ue journals for each month of the period
being audited.

Practice Management

(h) The PSWT folder with vouchers from Legal Aid
Board/Criminal Legal Aid.
2. Income Tax
In order to prepare for the income tax part of the
audit, I provided the Revenue auditor with the
following:
(a) Annual report from my own tax consultant for
each year of the period being audited.
(b) A copy of each income tax return.
(c) Costs journals for each month of the period being
audited.
(d) The creditorsâ&#x20AC;&#x2122; folders for each month.
(e) The PAYE/PRSI folder for that period.
(f) A list of outlays paid out during that time.
(g) The client account statements.
(h) The office account statements.
(i) Bank reconciliation statements for both accounts.
(j) Che ue journals for the office account.
(k) The client account che ue book stubs.
(l) The office account che ue book stubs.
(m)My personal bank statements.
(n) My personal credit card statements.

The tax payer
has a
responsibility to
keep adequate
records to
support the
taxes returned

the Parchment 21

Revenue gives the taxpayer
the opportunity of disclosing
any difficulty or under
payment of tax before the
audit begins
(o) The PSWT folder with vouchers from Legal Aid
Board/Criminal Legal Aid.
(p) Petty cash folders for each month.
. PAYE/PRSI
(a) PAYE/PRSI folder with copies of P 0s, P s,
P 0s and copy payslips for each member of sta
during the relevant period.
(b) Employee register with names and addresses,
dates of birth, PPSN and employment details of
all sta employed during the relevant period.
. There was no stamp duty paid by me personally
during that period. If there had been I would have
had the following ready:
(a) Copy contract for sale
(b) Copy deed of transfer
(c) Copy stamp duty return.
. What is re uired for a capital gains tax return in
my view would be:
(a) The return made to Revenue
(b) A sheet showing the workings of the tax paid
(c) Copy contract showing the purchase price paid
at the time
(d) Invoices or receipts for any expenditure on the
item
(e) Copy contract for sale.
. For capital ac uisition taxes the following would
be re uired:
(a) The details of the gift/inheritance
(b) The consideration if any paid, and a record of
this
(c) A sheet showing the workings of the tax paid
(d) The tax return
(e) ouchers for any expenditure
(f) aluations (if applicable)
. I had paid LPT during the period so for this I had
ready:
(a) Details of the registration of the property
(b) A printout of the LPT history
(c) A copy of the valuation I obtained on the
property at the time LPT began.
This took some work to put together and I made
separate folders for each category of items. Most of
these items, e.g. the costs journals and the creditor
invoices are already kept in folders. We did our own
compliance check in the office – for example, we
took the office bank statements out and ensured that
there were correspondence invoices for payments out
– there were a couple missing and we contacted our
suppliers who helpfully provided those missing. This
process took us about a week. At that point I notified
my tax consultants/accountants and asked them for a
pre-audit check.
They sent out their in-house tax expert and she
carried out a mini audit which identified some small
22 the Parchment

deficiencies in vouchers which we rectified.
Finally, the day arrived when Revenue called. I
didn’t ask my accountant to be present as I was
happy enough about the preparations carried out. On
re ection, I think that it would be best to have the
accountant there if one anticipated an issue with the
accounts, but if everything is in order there should be
no need to take on this additional expense. I asked
for and received without demur a copy of the official’s
photo ID and a letter confirming that they had been
appointed to audit. Prior to the audit beginning, the
official asked if there was any disclosure I wanted to
make. Revenue gives the taxpayer the opportunity of
disclosing any difficulty or under payment of tax before
the audit begins. This is absolutely standard and part of
the procedure.
Moving on from that there were some preliminary
uestions which I expected (confirmation of the bank
accounts held by the business) and which I didn’t (the
registration of my car). Rather than stand on ceremony
or uery the value of the uestions I co-operated fully
and gave answers freely. It turns out that co-operation
is valued and indeed expected by the Revenue
Commissioners during an audit. It can help mitigate
penalties and help achieve a better outcome if an
underpayment of tax is found during an audit.
The Revenue official then spent some time going
through the various documents. After some hours,
the official had some ueries, all but three of which
I answered. For the other ueries which I could not
answer, I agreed that I would contact my accountant
and get assistance with the ueries as they appeared to
be technical in nature. He asked if I had any ueries
and I asked the basis on which I had been selected. He
explained that about 0 of audit subjects are selected
using technology or other markers such as failure to
make returns. However, there are some taxpayers
selected randomly based on their PPSN every year
so that all taxpayers understand that they may be
selected. He thanked me for the co-operation and left
the same day. We sent on the additional information
when received from the accountant. A few weeks
later I received correspondence from the Revenue
Commissioners confirming that the audit had revealed
no additional sums due in tax, which is Revenue speak
for a clean bill of health
In summary, if selected for a Revenue audit these are
the steps to be taken:
Check the date and time, the location, type of taxes
and the period being audited;
Ask for more time as soon as the notification of
audit is received if needed – e.g. pressure of work or
absence on holiday;
• Prepare the papers needed in clearly labelled folders
neatly with indexes and tabbed if possible;
Present the papers in a logical and clear manner;
Consider engaging your accountants to carry out a
pre-audit inspection;
If there is an under payment of tax you know about,
use the opportunity to make a clean breast of the
matter and arrange for a declaration and payment of
the tax to be made immediately;
Co-operate fully and answer all ueries. P

Annual
DSBA Book
Awards
The prestigious fifth annual DSBA Book Awards ceremony celebrated the
best of legal writing over the past 12 months. The distinguished event took
place as part of the DSBA Midsummer Party at the Conrad Hotel, Earlsfort
Terrace on Friday 22nd June 2018. The Awards ceremony was conducted
by Robert Ryan, current DSBA President, and Keith Walsh former DSBA
President. Mr Justice Gerard Hogan of the Court of Appeal was guest of
honour and presented the winners with their much-deserved awards

n his speech, Mr. Justice Hogan paid tribute to
each of the book award nominees and praised
them for their work and contribution to the law.
The impressive shortlist of authors highlighted
the breadth of talent of legal writing and the
judges found it a difficult task to pick a winner in each
of the three categories which were as follows:
• Law Book of the Year Award, sponsored by
ByrneWallace Solicitors.
• Practical Law Book of the Year Award, sponsored by
Peter Fitzpatrick & Company Cost Accountants;
and
• Outstanding Contribution to the Law, sponsored by
Law Society Skillnet.
In an impressive and crowded field of nominees for
Law Book of the Year - which included Information
and Communications Technology Law in Ireland (Ronan
Kennedy and Maria Helen Murphy/Clarus Press),
Non-Fatal Offences Against the Person: Law and Practice
(Eamonn O’Moore/Clarus Press), Disability Law
and Policy: An Analysis of the UN Convention (Charles
O’Mahony and Gerard Quinn/Clarus Press), Juries
in Ireland: Laypersons and Law in the Long Nineteenth
Century (Niamh Howlin/Four Courts Press), Contract
Law 2nd Edition (Paul McDermott and James
McDermott/Bloomsbury Professional), Judicial
Review 3rd Edition (Mark de Blacam/Bloomsbury
Professional), Employment Law 2nd Edition (Ailbhe
Murphy and Maeve Regan/Bloomsbury Professional),
Redmond on Dismissal Law (Desmond Ryan/
Bloomsbury Professional), Medical Law in Ireland 3rd
Edition (Simon Mills and Andrea Mulligan/Bloomsbury
Professional) and Equity and the Law of Trusts 3rd
Edition (Ronan Keane/Bloomsbury Professional).

The winner of the DSBA Law Book of the Year
went to Mark de Blacam for his book, Judicial
Review, 3rd Edition. The “JR Bible” was a very
worthy winner and Mark expressed his surprise and
delighted at being selected as the winner.
The Practical Law Book of the Year Award was
sponsored by Peter Fitzpatrick & Company Cost
Accountants and the nominees included The
Construction of Wills, 2nd Edition (Dr Albert Keating/
Clarus Press); The Annual Licensing Court – The
Essential 21st Century Guide (Constance Cassidy
and Tim Bracken/Clarus Press); Social and Economic
Rights in Ireland (Claire-Michelle Smyth/Clarus
Press); The Court of Appeal – A Guide (Kieron Wood/
Clarus Press); The Land & Conveyancing Law Reform
Acts – Annotations and Commentary, 2nd Edition (JCW
Wylie/Bloomsbury Professional); Succession Act 1965
and Related Legislation – A Commentary (Brian Spierin/
Bloomsbury Professional); Arthur Cox Employment
Yearbook 2016 (Arthur Cox Employment Law
Group/Bloomsbury Professional) and Bloomsbury
Professional’s Company Law Guide 2017 (Tom
Courtney and Una Curtis/Bloomsbury Professional).
The judges’ choice for the winner of the Practical
Law Book of the Year Award was Succession Act 1965
and Related Legislation – A Commentary by Brian
Spierin.
The Outstanding Contribution to Legal Scholarship
Award – sponsored by Law Society Skillnet was
awarded to both Brian Gallagher and Alan Shatter
for their distinguished contributions to the law
over many years. Both Alan and Brian spoke about
their years in practice and as a team and thanked all
concerned for honouring them with this award.

Mr. Justice Gerard Hogan; Robert Ryan, DSBA President and Keith Walsh on
stage at the DSBA Book Awards
26 the Parchment

The Annual DSBA Book Awards were held in
conjunction with the DSBA Mid-Summer Party. The
event was tremendous success and a great night was
had by everyone in attendance. Our congratulations to
each author shortlisted and to each of the three worthy
winners. Our thanks to our sponsors ByrneWallace
Solicitors, Peter Fitzpatrick & Company Cost
Accountants and Law Society Skillnet - without whom
the event would not have been possible. P

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Recommendations
on the Future
Education of
Solicitors
The Dublin Solicitors’ Bar Association recently made a detailed
submission to the Legal Service Regulatory Authority (LSRA) as
part of a public consultation. A report is due to be submitted by
the LSRA to the Minister for Justice and Equality on the education
and training arrangements in the State for legal practitioners

T

he DSBA is a representative and educational
body for solicitors and does not have any
regulatory function in relation to solicitors in
Ireland. It is the largest independent provider
of continuous professional development
courses for solicitors in Ireland, averaging three CPD
seminars per month as well as numerous smaller events.
The DSBA is thus uniquely placed to provide a
perspective on the education and training arrangements
in the State for solicitors as legal practitioners.
For the purposes of our submission, the DSBA has
sought the views of members through the auspices of
the DSBA Council; its Younger Members’ Committee
and of a number of other parties including an associate
professor of law in UCD with a particular interest in the
subject of legal education In Ireland.
At the outset may we express our support for the
provision of legal education in Ireland which respects
and underpins the professional principles set out in
in Section 1 ( ) of the Legal Services Regulation Act
201 .

Primary Legal Education
The DSBA is an advocate of solicitors having a degree
in law (or law coupled with other suitable topics such as
business), as providing the basic but essential grounding
re uired for entry to professional practice. In that
regard we understand that the holding of a primary
or secondary degree in law in other EU jurisdictions
is typically a pre-condition to entry into the legal
profession in such jurisdictions.
As matters stand however, there’s no re uirement for
students who wish to become solicitors to undertake
a primary degree in law, given that the Law Society’s
solicitors’ entrance exam (called Final Examination
Part 1, or FE1) is open to all persons whether with
or without a university degree, whether having a law
28 the Parchment

degree or non-law degree and whether or not having
undertaken any prior conversion course in the law
before sitting that exam.
Accordingly it is timely that as part of the
Authority’s education review some consideration is
given to attributing a substantive value to having a
university or other primary or secondary degree in law,
and what credit(s) might be given to the holders of
such a degree, in respect of the FE1 exam. At present
the only ‘credit’ provided is an exemption from holders
of any university degree in Ireland from having to sit
the Law Society’s solicitors’ preliminary exam – which
has nothing to do with law, and goes only to testing
knowledge of English and the Irish Government as
well as general knowledge.
If it is viewed as appropriate that the FE1 exam
(whether as is or as re-modelled in the future) should
remain open to be undertaken by anyone who (having
passed or is exempted from the preliminary exam)
chooses to do so whether or not they have any
background in the study of the law, then the DSBA
advocates the introduction of a credit system for
holders of a law degree (primary or secondary) or a
law conversion degree or diploma from appropriate
educational bodies duly certified for such purposes
by the Law Society in relation to the exams to be
undertaken for FE1. If no such credit is provided, then
in e ect one e uates a four-year law degree course
(such as provided in TCD and UCD) with a one year
law conversion course (in preparation for the FE1
exam) o ered by non-university educational bodies.
The certification’ of the educational bodies
concerned should include and thus allow (subject to
appropriate standards and syllabi) for credit in the
form of exemption of certain law degree modules
from corresponding FE1 exam modules where a
certain standard has been achieved by the law student

Summer 2018 dsba.ie

News

concerned in or during his/her law degree.
The DSBA also advocates more structured cooperation between the solicitors’ profession (through
its representative bodies) and law degree providers
(such as through the heads of law schools’ networks/
forum) to assist in having law syllabi streamlined
rather more towards the practice of law by solicitors.
In particular we advocate the increased adoption of a
“clinical education” approach by universities to help
develop the skills that trainees require to exhibit as
trainee solicitors (as to which please refer to the paper
titled as: Legal Education in Ireland: A Paradigm Shift to
the Practical, 2011).
The introduction of a more “clinical education”
approach may very well in turn increase the
attractiveness of undertaking a law degree, particularly
from the perspective of the availability of trainee
contracts from law firms. In that regard, for example,
the recent introduction by UCD Law Faculty of a
dedicated legal skills and drafting module across
legal topics for all first year law degree students (as a
compulsory re uirement) may be regarded as a very
progressive step in university-based clinical education
in Ireland.
Another good reason to examine streamlining is to
ensure that so far as practicable, law school students
cover in their degrees the bulk of the syllabus required
to sit the FE1 exam. Our comments above should not
be taken to attribute a lesser value to non-law degrees
or diplomas, but rather seeking to attribute a more
substantive value from the legal education obtained by
undertaking a law degree in Ireland.

Final Examination
In order to undertake a traineeship with a solicitor,
the first re uirement (apart from the preliminary exam
mentioned above) is for the student to sit and pass
the FE1 exam set by the Law Society of Ireland. This
involves sitting and passing eight basic legal topics
as follows: company law; constitutional law; law of
contract; criminal law; European Union law; e uity;
real property and law of tort.
The FE1 exam takes place twice a year (spring and
autumn) at a cost of €10 per examination (€8 0 in
aggregate). The exams can be taken at intervals and
thus students typically take a set of four exams at a
time (which means all can be sat in one year if the
student so re uires).
The syllabus for the FE1 exam is well structured and
practically orientated towards becoming a solicitor.
The exam is a high standard, professional orientated
test, the uality of which is supported by not being
conducted on an open book’ basis.
We would however suggest that the present review
gives consideration as to whether in the interests of
all concerned, not least the recipients of legal services,
one would be better served by the introduction of a
mandatory pre FE1 exam re uirement as to having
undertaken an appropriate study of Irish law with a
certified body over a period of at least two years. This
may of course be contrasted with the three to four
years re uired to achieve a university law degree, but at
least would go some way to ensuring that those who sit

the FE1 exam have obtained a good grounding in Irish
law across all its aspects.
We would also suggest that the Authority considers
as to whether, in the interests of reducing the overall
time period required to obtain the requisite legal
education to practise as a solicitor, the FE1 exam would
be open to being sat by law students in their third or
fourth year of study for their degree (thus facilitating,
if successful in the FE1 exam, an earlier start to their
entry on to the PPCI course). The present structure
where typically, the FEI exam is taken in two or more
sittings by a student can operate to materially delay
the start of such student’s training as a solicitor –
albeit passing the FEI exam is of course down to each
student.

Training Contract
Having passed the FE1 exam, a person becomes
thereby eligible to apply for a place on the Law Society
Professional Practice Course 1 (PPCI).
However, as a pre-condition to taking up a place,
such person must have secured a training contract
with a practising solicitor of five years or more
standing. This re uirement can be very difficult for
students to meet so early in their career, and can also
be very difficult for law firms to be able (apart from
exam results) to make an informed determination of
the skills and abilities of the person concerned. The
re uirement to obtain a training contract is a precondition, but yet is only re uired to be commenced
within 1 days after completion of the PPCI course.
One might wonder therefore why such a pre-condition
exists at least as a mandatory requirement rather
than an optional one. It is also the case that once
a training contract has been signed up to that, the
training solicitor becomes liable under employment
law to pay the salary of the trainee notwithstanding
their non-availability for six months from date of
commencement of the PPC1 course.
It may also be noted that the training contract has
two legal components to it, namely the indenture of
traineeship and an employment contract. It is not the

Another
good reason
to examine
streamlining
is to ensure
that so far as
practicable,
law school
students cover
in their degrees
the bulk of
the syllabus
required to sit
the FE1 exam

the Parchment 29

The DSBA
questions
whether the
present PPC1
course delivers
for both law
firms and
students in the
manner or to
the standard
re uired, at
least from
a “clinical
education”
perspective.
Learning by
rote is no
substitute for
actual learning

case that the component parts are mutually harmonious
as they impose professional obligations and employer
obligations respectively. In e ect the trainee who holds
a training contract can be immune from any form of
sanction or removal by the training solicitor for nonperformance by the trainee solicitor, notwithstanding
what would otherwise be the case under employment
law. We would suggest that the component parts and
the obligations that they impose both on solicitors and
trainees be considered as part of the education review
by the Authority.
Following completion of the PPCI course a person
must then commence their training with their
contracted solicitor for a period of 11 months. The
training solicitor is obliged over the course of the
traineeship to ensure that the trainee obtains knowledge
of certain basic practice areas to include: conveyancing,
litigation, probate, and one other to be chosen. In turn,
that requires a trainee to be moved regularly within a
law firm in order to gain such experience whether or not
that law firm provides services in all of the basic areas.
This is not necessarily objectionable (as being necessary
to ensure an all-round grounding in the practice of law)
but it may very well serve to substantially limit the
experience gained by the trainee and of less usefulness
to the training solicitor.
Whilst 11 months might appear to be a reasonable
period of time, in practice it is generally too short a
time period to provide the requisite practice experience
that a trainee solicitor needs to obtain; and makes it
more difficult for the training solicitor and his/her firm
to adequately plan for the provision of the required
experience and running of the firm’s practice.

PPCI
PPCI is a full-time training course that runs from
September to March which is held out to be practiceoriented with instruction given mainly by practising
solicitors and Law Society sta . Students are assessed
through continuous assessment and end-of-course
examinations.
The following are the subjects covered: foundation;
course applied land law; probate and tax; business
law; litigation (civil and criminal); legal practice Irish
(LPI); skills - civil and criminal advocacy; interviewing
and advising; legal research; legal presentation; skills;
legal writing and drafting; negotiation and professional
development.
The provision of the PPC1 course is not subject to
any published standards or monitoring of standards as
to the adequacy or otherwise of the teaching or content
of the subjects outlined above. The DSBA advocates the
introduction of monitoring as being essential towards
ensuring the delivery to law firms of trainees who have
the re uisite practice and knowledge-based skills to
make them immediately useful on commencement of
their in-law firm training contract. In circumstances
where learning and exams in PPC1 is through open
book and online mediums, and with limited focus on
the actual practice as a solicitor across the spectrum of
activities/business, the DSBA uestions whether the
present PPC1 course delivers for both law firms and
students in the manner or to the standard re uired, at
30 the Parchment

least from a “clinical education” perspective. Learning
by rote is no substitute for actual learning.
For example to take one of the basic and essential
skills re uired of a solicitor – the drafting of a
range of documents to include letters, agreements,
declarations, notices etc. It is essential that those
drafting skills are embedded into students of the
PPCI course across each legal topic being studied,
and not just as a simple module in its own right.
Stronger emphasis is re uired in the PPC1 module on
development of the core skills of drafting, negotiation
and advocacy across all modules, as well as instilling
in students an acute understanding of ethics and
undertakings.
The feedback we received from recently ualified
solicitors is that there was insufficient focus in the
PPCI module on the practical aspects of being a
solicitor. This includes advocacy, the courts system,
interviewing clients, letter writing, drafting of
deeds, conducting meetings, making presentations,
understanding fee income and billing, etc.
We observe that the syllabus of the PPCI course
has not been the subject of consultation with training
solicitors or generally law firms at large. It is odd
that the solicitors and law firms who provide what
is described as “the core legal training” of a solicitor
have not been consulted at large by the Law Society
as provider of the PPCI course, notwithstanding its
central role in the process of the legal education of
solicitors.
The cost of the PPCI Course at €8, 00 (circa
€1 ,000 before income tax) is onerous for both
trainees (if paid by themselves) or law firms (if paid by
them). One might expect that sort of cost for a yearlong course, not a six-month course. For most smaller
to medium-sized law firms a decision whether to
commit to taking on one or more trainees is materially
in uenced by the level of PPCI fees coupled with
the mandatory salary that must be paid to a trainee
undertaking that course. The DSBA suggests that
the cost of PPCI be reviewed as part of the study to
evaluate whether such a cost acts as an inhibitor to
entry into the solicitors’ profession in Ireland, and if
so whether justified.
To provide support for students who do not have
the means to discharge the cost of PPC1, one might
recommend that any surplus funds arising from
operation of the Law Society Education School (to
year end 201 , being circa €2 0,000) be applied as
bursary grant funding targeted at poorer students
who take up training contracts with small law firms.
This may serve to lessen the financial obligations on
small firms and in turn encourage more widespread
availability of trainee solicitor positions.

PPCII
After 11 months of the in-office training period post
PPC1, the trainee returns to the law school to attend
PPCII which usually begins in April and runs for
11 weeks inclusive of examinations. The following
are the compulsory subjects covered on the PPCII:
professional practice; conduct and management
(PPCM); family and child law and employment law.

Summer 2018 dsba.ie

News

There’s also a range of elective choices: advanced
civil litigation; advanced legal practice Irish; banking
law; commercial and complex property transactions;
commercial contracts; corporate transactions;
insolvency; medical law and litigation; non-adversarial
dispute resolution; technology and intellectual
property law syllabus; time, costs, skills.
The PPCII course fees are € , 00 (or circa € , 00
before income tax). Our observations on PPC1 above
apply e ually to PPC11. In addition to our observations
above, we suggest the following:
1) That the PPCII course syllabus is structured to
deliver in terms of skills and knowledge, trainees
who should be fully educated in the key practice
areas of litigation, probate and in their respective
elective subjects, to a standard almost ready to
commence practice as a solicitor in their own right.
To give two examples - in property matters
one would expect the trainee to have a detailed
knowledge of the rules of the Property Registration
Authority of Ireland and of all aspects pertaining
to property transactions; in litigation matters
one would expect the trainee to have a detailed
knowledge of the rules of the superior courts and
of all the forms required in that regard in relation
to legal proceedings. In both cases one would
expect the trainee to have the skill and ability to
draft, without much correction re uired, basic legal
documents as well as day-to-day correspondence.
2) That the PPC11 course, in its elective subjects,
be divided between (a) topics re uired by general
practitioners and (b) topics re uired by larger or
more specialist firms.
The feedback we received from recently ualified
solicitors is that there was insufficient focus in the
PPC11 module on the practical aspects of being a
solicitor; and that family aw should be optional.
) That the PPCII examination be practice orientated
and non-open book so far as practicable.
Having completed PPCII the trainee must return
to the office of the training solicitor and complete
the outstanding period of time – ten months if the
trainee has not gained credit of work done prior to
PPCI and six months if credit has been obtained.

PPCI & PPCII
While there may be arguments for and against, the
DSBA is of the view that the Authority in its education
review considers the possibility of the upfront loading
of the professional training requirement in advance
of in-office training, and accordingly to having a
combination of PPCI & PPCII into a one all in’ up to
nine-month course with two modules similar to PPCI /
PPCII. It could be proceeded by a two-month practice
induction training in the office of the training solicitor,
to give the trainee a perspective on what’s required to
be learned on the training course.
A combined course would have the merit of
uninterrupted in-office training over the re uisite
period and thus be more beneficial and cost e ective
to trainees and law firms alike.
Whatever the outcome of the review, it is essential
that structures are put in place to regularly monitor

and adapt the modules for the education of trainee
solicitors, the subjects on each syllabus, the optional and
subject electives for each syllabus, and the way in which
subjects are taught – to ensure those modules deliver on
the business and practice needs of Irish law firms and
better prepare trainee solicitors for work.
Finally, as regards the provision of PPCI and PPC11
courses by the Law Society we currently hold the view
that the Law Society should remain the sole provider.
This is on the assumption that the Law Society becomes
subject to appropriate monitored professional legal
educational standards which are verified as fit for
purpose; and where the structure and content of the
courses is consulted upon with the solicitors’ profession
at large on a periodic basis.

Recommendations
1. To attribute greater value/credit to the law degree as
part of legal education training.
2. To retain the FE1 exam but permit for law degree
students early sitting and subject credits for degree/FE1
exam duplication.
. To consider the introduction of a pre FEI exam
requirement as to having undertaken an appropriate
study of Irish law for up to two years with a body
certified by the Law Society.
. To continue with the provision by the Law Society
of the PPCI and PPC2 courses, subject to monitored
standards and cost evaluations.
. To consider combining the PPCI and PPCII into one
course, to run continuously for six to nine months.
. To review the training contract make up (in its
two component elements) and its suitability to legal
education and practice re uirements.
. To make CPD courses subject to appropriate standards
and evaluation by the Authority.
8. To encourage closer links between legal education
providers and solicitor representative bodies to discuss
legal education training with reference to core legal
subjects and legal skills.
. To ensure the curriculum for PPCI and PPC2 is more
practice oriented and taught in a manner which provides
trainee solicitors with the essential skills and knowledge
re uired for their practice as solicitors.
10. To ensure that the curriculum for PPCI and PPC2 is
made subject to periodic consultation with the solicitors’
profession, and responsive to the needs of solicitors’
practices.
11. To divide the elective topics on the PPC11 course
into (a) subjects re uired by general practitioners, and (b)
subjects re uired by larger or specialist firms.
12. To ensure that emerging trends and needs in legal
education and training (e.g. as to legal analytics, legal
technologies and legal services online) are considered
periodically by the Law Society, and curriculum
adjustments made as appropriate to training courses.
1 . To ensure that the “open book” approach to
examination of knowledge and skills on PPCI and PPC2
does not predominate the method of course examination.

or one week in September 2000,
Ken Smyth, solicitor was the
number one news story across
all organs of the Irish media.
His office had been broken into
three times over the previous six weeks, it
was suspected that his home telephone line
was being tapped, he was pretty certain his
office was bugged and in an unprecedented
move the Law Society had issued a statement
formally calling for a response from the
then Garda Commissioner for what the
Society termed a “deeply sinister invasion of
the constitutionally protected right to privileged
communication The lawyer was clearly in
the midst of a tempest whipped up by his
courageous and relentless pursuit of justice
for a Donegal family who have since become
household names and whose life experience
represents perhaps the darkest chapter of

My uncle was the late
John . Kelly who was
a solicitor and coroner
for Cavan and my
other great in uence
was Dickens!

Garda corruption in the history of the State.
Ken Smyth cuts an unlikely figure for
someone whose “proudest achievement in the
law” was his work leading to the establishment
of the Morris Tribunal in 2002. A selfconfessed bibliophile, Ken’s genial demeanour
and unfailingly polite manner masks a lifetime
of hard earned experience where “serendipity
played its part” to lead the Fitzwilliam Street
based lawyer into a career franked with many
notable achievements.
“When the Minister of Education (John
Wilson) came to our house when I was 11 he
asked me what I wanted to be, I said a lawyer’,
he said what side’ I said a solicitor’,” begins
Ken. “My uncle was the late John . Kelly who
was a solicitor and coroner for Cavan and my
other great in uence was Dickens ”
The Dickensian in uence is not surprising
as lawyers appear as characters in 11 of
the Parchment 33

The pressure was immense, I remember
on one occasion myself and my wife
being followed by a car from our hotel
in Donegal town, we ended up going up
every boreen in the Rosses practically
and still were followed
Dickens’ 1 novels and I’m pretty sure Ken
has devoured the complete works, (he tells
me as an aside he is currently 0 books
into the complete works of Trollope ) “I
remember reading avid Copper eld as a
child and wondering was there such a book
as Tidd’s Practice and whether it was possible
for someone to make a living from something
that went on as long as Jarndyce v Jarndyce
(the fictional court case in Bleak House which
drags on for decades).”
When I gently tease him by suggesting
that the Dickensian lawyer he most
resembles is perhaps Mr. Jaggers (from Great
Expectations) Ken uips in reply: “well I hope
I’m not a Uriah Heep anyway”.
There is a serious point to be made
however in all of these trips down “literary
lane”. Ken Smyth firmly subscribes to the
view that the law can and should be “an
agent for good in society” and to paraphrase
Charles Dickens “it is a bulwark against the
blacking house”.
School was Belvedere College, followed by
four years in Trinity College, a very di erent
place in the early 1 80s than it is today, Ken
surmises. “Four years of enjoyment” Ken
recalls being taught by two former Presidents
(Mary Robinson and Mary McAleese), the
anti-apartheid activist Kader Asmal and
the renowned British legal scholar and legal
historian, R.F. . Heuston.
Apprenticed to Eugene F. Collins, “a fine
firm that I’ve a huge amount of time for
where I got exposure to every possible area
of practice,” Ken acknowledges. When asked
whether any particular memory stands out
from his apprenticeships he recalls running
a licensing application on behalf of the
Freemasons. “I used to enjoy turning up at
the old Court number in the Four Courts
which was then a District Court and when
the Masons’ application would be called on
the list, the entire court would turn around
to see who was making the application ”
As the economic recession of the 1 80s
lingered on Ken like hundreds of other newly
ualified Dublin lawyers, considered a move
to London. He remained however in Dublin
and joined Binchys Solicitors where he spent
18 years as a solicitor and partner.
34 the Parchment

Working in litigation with Binchys saw
Ken acting in a number of high-profile cases
through the 1 0s and onwards, one more
noteworthy than the other, truth be told
The leading passing o case of Gabicci v
Dunnes Stores Ltd is a good place to start.
Ken picks up the story. “Everything about
Gabicci was interesting and the outcome
was interesting. Our client was Gabicci who
sold high- uality casual shirts and jumpers
(immortalised on screen in the 1 80s as the
casual shirt of choice for one Derek Del Boy
Trotter’ the star in the BBC comedy Only
Fools and Horses).
“The client was receiving complaints from
drapers across the country alleging that we
were selling the same product at low cost
through Dunnes Stores.” A sting operation
on the Italian-based manufacturers in a plot
perhaps worthy of Trotters Independent
Trading gave Ken’s clients enough evidence
to commence a claim in the High Court
for passing o . But as is often the case, the
choice of trial judge was pivotal.
“The case couldn’t have come on before a
better judge than Miss Justice Mella Carroll,
as I didn’t hear until I read her obituary
that she used to make Communion dresses
for her nieces. So in High Court number
you had two racks of clothes on either side
of the courtroom – one Gabicci and one
St Bernard. Judge Carroll came down from
the bench and inspected each garment on
each rack trying to find di erences in warp,
weft and colour ways – tailoring terms that
lawyers know little to nothing about”. The
court found in favour of Gabicci.
Another memorable case has become
known as the “Ryanair Millionth Passenger
Case” where Ken was for the airline (“very
firm but very fair clients”) the result was
that the High Court awarded compensation
to Ryanair s millionth passenger for breach
of contract. One noteworthy feature of
the hearing was the playing of 1 minutes
of the “raw” (unbroadcast) RTE News
footage of the ight in 1 88 which resulted
in the millionth passenger award. Ken
found himself in a darkened courtroom
viewing news footage before Mr Justice
Peter Kelly. “A di erent Ireland” is how Ken

diplomatically puts the scenes witnessed on
screen.
Between clothes racks and cinema
screenings, the Courts Service (or its then
predecessor) must have been wondering
what next to expect from a case ran by Ken
Smyth. A phone call to the office from a
private investigator was to change the course
of Ken’s career.
“It was th February 1
; I took a call
from a private investigator called Billy Flynn
(now deceased) who told me that at 2pm
today a man called Frank McBrearty, will
call you. Will you listen to him, it’ll sound
a bit mad, but please listen to him. I did
listen to him and 21 years later I still have the
handwritten notes from that call.
“The picture that was being painted
sounded to me like a conspiracy theory gone
mad. There was talk of harassment, how
the man and his family were being framed
for murder and how a reign of terror was
being visited upon himself and his extended
family.”
Ken travelled to Donegal and met the
McBrearty family, when their original case
started to be backed up by concrete evidence
of extortion and harassment and when
certain persons from within the ranks of the
Gardai sought Ken out and started to (using
the parlance of the current day) “whistle
blow”. Ken was convinced that right was on
the McBrearty’s side.
The litigation strategy to be deployed
needed to be defensive from the outset.
There were 1 2 di erent charges contained
in about 1 0 summonses against what has
become known as “the extended McBrearty
family” had to be defended. In tandem
with dealing with the multiple summonses
Ken was tasked with preparing High Court
proceedings against the State for malicious
prosecution.
Some of the charges veered on the
ridiculous. “There was one particular charge
in respect of the control of a dog where
the Garda gave evidence that the dog was
sweating’. I had to pass a note to counsel
asking the Garda whether it would surprise
you to know that dogs cannot sweat’!”
“The pressure was immense, I remember
on one occasion myself and my wife being
followed by a car from our hotel in Donegal
town, we ended up going up every boreen
in the Rosses practically and still were
followed.”
In all of this the “wider issue” (as it came
to be known) of alleged Garda misconduct in
the Donegal division needed a di erent type
of judicial intervention, so Ken (in addition
to firefighting on a near constant basis for his
clients) was advocating for the establishment
of a tribunal of in uiry. The Morris Tribunal

Summer 2018 dsba.ie

Cross Examination

Photography: Bryan Meade

was eventually established in 2002 under
the chairmanship of Mr Justice Frederick
Morris. It sat until December 200 and its
final report was issued in October 2008.
Ken is careful to acknowledge the role
of David Walley who acted for both Frank
McBrearty Senior and Junior (and others)
at the Tribunal and ultimately brought the
malicious prosecution action to a conclusion.
“David is a very good colleague,” Ken
adds. Ken ended up acting for a number
of members of the extended McBrearty
family at the Tribunal, he gave evidence as
a witness for a week and his attendances
and notes (dating back to his pre-Tribunal
representation work) were viewed as
evidence of great worth.
Whilst Ken understandably felt
“vindicated and elated at this, the proudest
moment of my career” the last word perhaps
should be left to Mr Justice Morris who in a
written ruling in August 200 commended
Ken Smyth to be “a diligent and hard
working solicitor”.
John Forster, a biographer and friend of
Charles Dickens once wrote that the suffering
children in his works were his clients whose cause
he pleaded with such pathos and humour, and
on whose side he got the laughter and tears of all
the world I’m not surprised that the boy
who was inspired to become a solicitor by
Dickens now devotes a substantial element
of his practice (since 1st September 200 ,
Ken has operated his own practice, Ken
Smyth and Company in Lower Fitzwilliam
Street) to cases involving the welfare of
children.
It’s a sensitive area of practice and
one which re uires discretion and sound
judgment. Typically (though not exclusively)
Ken’s clients tend to be parents who have
had an emergency care order (or a similar
order) made against them either by an
English local authority or by the Child and
Family Agency (TUSLA) in Ireland and their
children have been put up for adoption.
These types of cases primarily arise as Ken
points out “owing to the draconian child
protection laws in England” and the overly
deferential attitude of the Irish authorities
to the enforcement of English orders.
There’s also a body of work to be undertaken
from time to time in terms of bringing
judicial review applications against care
orders made in Ireland.
“Three times since last September we have
got children back” is how Ken directly puts
it. In terms of delivering a positive outcome
for a client, reuniting a family unit that a
court has found to have been unlawfully
or unjustly divided by an administrative
decision has to rank up there in terms of job
satisfaction.

Ken Smyth at a glance

FAMILY
Married to Ciara since
1991. One daughter
(Maeve)
FAVOURITE FILM
The Spanish Prisoner
(1997)
FAVOURITE BOOK
Non-fiction – The Years of
Lyndon Johnson (Volumes
1-4) by Robert A. Caro
Fiction – Anything in the
19th century – Trollope,
Wilkie Collins, Mary
Elizabeth Braddon etc.
FAVOURITE PIECE OF
MUSIC
Suppers Ready by
Genesis

Given the nature of the area the stakes are
uite high for getting things wrong or indeed
getting potential clients wrong. etting
is thus a crucial first step for Ken and his
team. “I usually feel that if I get what I call
a McBrearty style feeling about a potential
client, that I have made the right call.”
When I ask Ken by way of parting
comment what his advice is to new entrants

to the profession or indeed to younger
solicitors he replies “don’t come into the law
for money, you have to love it, there has to
be a reason to get you out from under the
duvet every morning, do it because you want
to do it”.
That’s sound advice and it’s clear from
Ken’s continued zest for practice that its
advice he abides by. P
the Parchment 35

Flor McCarthy is managing partner of McCarthy & Co Solicitors and is author of The Solicitor’s Guide to Marketing
and Growing a Business; How to Turn Your Legal Practice into a Financial Success, www.thesolicitorsguide.com

How to
get More
Clients?
A recent UK survey about solicitors has produced some
interesting data. Flor McCarthy says that the answer to more
clients rests with the ones you already have

The
importance
of marketing
your practice
is not about
fancy logos
or smart ads,
it’s about how
you relate to
your list

36 the Parchment

E

arlier this year the Solicitors’ Regulatory
Authority published the results of its Price
Transparency in the Legal Services Market survey.
It involved a very detailed survey of 1,000
participants on the market for conveyancing
services in the UK.
The last survey done in this area here was carried out by
the Law Society in 201 . The results of the more recent
UK survey add some very interesting insights to this
analysis.
The survey looked at two factors in particular: how
buyers find solicitors and then how they choose from
what they find.
The results show that 80 found their solicitor based
either on the recommendation of a family member,
a friend, an intermediary or from previous personal
experience.
Similarly, when it came to selecting from the options
that they had found, 80 also chose based either on such
a recommendation or prior experience. Interestingly, only
chose the cheapest option available to them.
There’s much more to these figures, but they bear out
a very simple fact that emphasises the importance of
marketing your practice is not about fancy logos or smart
ads, it’s about how you relate to your list. It’s all about the
list baby.
People do business with those whom they know, like
and trust. Therefore, your first and most important task
in marketing you and your practice, is to have simple and
e ective systems in place for developing your relationship
with those who know you, and who come to like and trust
you because of that relationship.

So, let’s look a little deeper. One of the difficulties
I had with the Irish Law Society survey in 201 is that
it said only 2 relied on a website or online search in
choosing their solicitor. And while you can’t just choose
the results that you like, that just did not make sense to
me or bear out my personal experience.
Even if the number of those who first hear of you
via a website or online search is small (which need not
necessarily be the case), a much larger number will go
online to check you out after they first hear of you.
There can be absolutely no doubt on this.
Now, the interesting thing to say here of course is that
on its own, a website may not contribute anything to the
ow of new work to a practice – like any tool it depends
entirely on how you use it.
But no matter how e ectively you use a website as
a lead generation marketing tool, it should serve as an
essential source of credibility and conversion tool, in that
even if they don’t first hear of you online, your online
presence should assist in making them comfortable to
choose you after they have found you.
The findings of the UK survey are much more in
keeping with my own personal experience both as a
business owner and a consumer of services. It found
that 1 considered more than one solicitor and
1 spent more than one hour searching online for
a solicitor. However, despite all of that appetite and
e ort in shopping around, 2 ultimately went with
a recommendation given by friends and family, or an
intermediary in the end.
A figure of 8 said that they choose their solicitor
based on an internet search (and before any of you

Summer 2018 dsba.ie

Practice Management

statistical geniuses out there start writing to me, yes,
I know the figures add up to more than 100, but the
uestions were multiple choice and each respondent
may have chosen more than one answer).
But even though only 8 said they actually choose
their solicitor this way, 1 actually went looking online
presumably for reasons varying from search, to verifying
the recommendations of others, to comparing the
recommendations of others with the other available
alternatives.
The buying process for our services is a complex one.
You should expect that.
When people come to use a solicitor it is often at a
momentous point in their lives; it’s a big deal to them
and can be a lot of worry and stress associated with the
decision making process.
Complex problems re uire complex solutions.

Therefore, your marketing and sales process has to be
up to the challenge. Consider this as an opportunity
rather than a challenge. Most don’t bother to consider
these uestions clearly at all, those who do and who
actually implement what is re uired as a result, have a
huge advantage in the marketplace.
When I say complex solutions, I don’t mean that
this has to be rocket science. It doesn’t and it shouldn’t.
What I mean is that if your prospects are looking in
multiple places and coming to you via a number of
routes simultaneously (and they are), you just need to
have the right content and processes there to aid them
in their decision making and their journey to becoming
your client.
The results of the survey are worth a read in detail,
just Google the words in inverted commas at the start
of this article and it should be the first result you’ll see. P
the Parchment 37

Redundancy
Claims - Traps for
Employers, Tips
for Employees
The redundancy legislation in Ireland is very specific on time
limits. Employment expert Richard Grogan warns that these
time limits can catch colleagues out

E

mployment legislation in Ireland is
riddled with very strict time limits. The
e ect of this was seen in a decision of the
Labour Court in a case of DNT Forkam
Construction Limited and Michael
Diamond RPD181. In this case there was no dispute
between the parties as regards the facts.
The employee was employed and was placed on
temporary lay-o on th January 201 . Some four
weeks later on 2nd February 201 pursuant to section
12 (1) of the Redundancy Payments Acts 1
-201 the
employee served a duly completed form PR on the
employer, asking for redundancy.
The employer subse uently issued a counter notice
dated th March pursuant to Section 1 (2) of the Act.
This is where the problem arose.
The court pointed out that section 1 (2) permits an
employer who has received a notice from an employee
of an intention to claim a redundancy payment in a
lay-o situation, to serve on that employee a counter
notice within seven days of receipt of the original
notice. In this case for the counter notice to have been
e ective, it would have to have been served by the
employer on the employee no later than 10th February
201 . It was served on th March which was outside
the statutory time limit.
The employee had argued that on subse uent dates
on th June 201 and 1st August 201 the employer had
o ered work to the employee. It was argued that the
employee was not interested in returning to work. The
Labour Court pointed out that these are not matters
which can be taken into account. The Labour Court
also indicated that the employee had fulfilled the
re uirement specified in the Act. The employer had
failed to do so.

38 the Parchment

For colleagues dealing with redundancy claims it
is worth reading Sections 11 to 1 of the Redundancy
Payment Acts 1
-201 .
In the case in uestion the Labour Court held
that it was obliged to confirm the adjudicator’s
decision which was that the employee was entitled to
redundancy. This is a case which highlights potential
traps for employers and tips for employees.
There are two traps for employers. The first is
that the seven-day period to furnish a counter notice
is a strict period. There’s no provision whatsoever
for an extension of time. There can be no excuse
if the counter notice is not served on time. If it
is not served on time, the employee is entitled to
redundancy. The second trap for employers is that
where a counter notice is served, the employer must
be in a position to provide 1 weeks continuous
full-time work commencing no later than four
weeks from the date of the counter notice. There
are issues in relation to this which employers need
to be careful of. Simply serving a counter notice to
defeat a redundancy claim can seriously backfire. If
an employer serves a counter notice and is not in a
position to furnish the 1 weeks continuous work,
then in those circumstances the employee will be
entitled to claim both redundancy and 1 weeks
wages. For an employee on € 00 gross per week this
would be an additional € ,800.
For those acting for employees it is very useful
to ensure that any RP that is being served is sent
by registered post and using a certificate of posting
so that there is clear and definitive evidence that
same has been served. It is important to ensure that
the relevant form is fully set out and signed by the
employee and dated.

Summer 2018 dsba.ie
Richard Grogan is principal of Richard Grogan & Associates Solicitors and Registered Tax Consultants.
His firm won the Employment Law Team of the Year Award 2018 at the recent Irish Law Awards

For those acting for employees it is important to
check if counter notice, when served, is received
within seven days. The re uirement of the legislation
re uires that it is served on the employee. This
means e ectively that it is delivered to the employee.
If an employee serves a counter notice to arrive in
the normal course of post with an employer on say,
the Friday before a bank holiday then, unless the
employee receives a counter notice delivered to him
or her by the following Thursday, the employee is
entitled to redundancy.
When acting for employees it is important to
ensure that the appropriate RP form is served.
When acting for employers, if you are furnished
with an RP , it is imperative that you take
instructions immediately from an employer and

if a counter notice is appropriate to be served,
that it is served forthwith within the seven-day
period. If there is any difficulty in relation to when
something might be delivered by way of post, in
those circumstances you should ensure that the
employer personally delivers same to the employee.
The redundancy legislation in Ireland is very
specific on time limits. And these time limits can
catch colleagues out. This short article is simply
here to alert colleagues to the relevant issues.
I would recommend that colleagues read the
recent decision of the Labour Court. It has the
advantage of setting out the legislation in full. It
is a short, precise and well written decision which
makes the law abundantly clear to anybody
reading it. P

Employment Law

The redundancy
legislation in
Ireland is very
specific on time
limits.These time
limits can catch
colleagues out
the Parchment 39

Justice
Delayed is
Justice Denied
“To delay justice is injustice” - even if it’s not your fault. As this
maxim suggests, it is an essential tenet of the e ective administration
of justice that proceedings must progress to trial without significant
delay. Michael Kelly looks at the Rules of the Superior Courts and
the courts’ rights to strike out proceedings for want of prosecution

W

hile there is a legislative basis for this
power contained in Order 2 rule 1
and Order 122 rule 11 of the rules of
the superior courts, the courts also
have an inherent jurisdiction to strike
out proceedings for want of prosecution.
The test under which the courts exercise this
jurisdiction was initially set out by Finlay P in July 1
in the case of Rainsford v Limerick Corporation 1
2 ILRM 1. This decision was later approved by the
Supreme Court in the 1
case of Primor plc v Stokes
Crowley 1
2 IR
.
The basic principles are as follows:
1. The delay must be inordinate and inexcusable.
2. If inordinate and inexcusable the court must in its
discretion, decide that the balance of justice lies in
favour of the case not proceeding.
The courts will look at any relevant factors in
particular any delay on the part of the defendant and
whether the delay prejudices the defendant or creates
a risk that it is not possible to have a fair trial. It is
important to note that fault on the part of the plainti
is not essential. O’Domhnaill v Merrick 1 8 IR 1 1/
Toal v Duignan (no.1) 1 1 ILRM 1 / Toal v Duignan
(no.2) 1 1 ILRM 1 0 – these cases support the
position that even where there is no fault on the part
of the plainti , it may still be in the interests of justice
to strike the proceedings out.
Despite the Supreme Court’s endorsement of
this test such motions are granted sparingly by the

40 the Parchment

courts. However, there appears to be a shift in the
willingness of the courts to strike out cases for want of
prosecution as illustrated in the recent case of Brian
Maxwell v Life Assurance plc and John Fallon 2018
IEHC111.
This case concerned an action against an insurance
company for specific performance of an insurance
contract. Despite the fact that the motion to dismiss
for want of prosecution was served within a year of the
plainti seeking voluntary discovery, the court ordered
that the case be struck out for want of prosecution.
The first named defendant identified three specific
periods of delay: three years from delivery of letter
denying liability to issue of proceedings; 22 months
from delivery of notice for particulars to delivery of
replies to particulars; and two years from delivery
of replies to particulars to delivery of letter seeking
voluntary discovery.
The court deemed the appropriate standard for
examining whether delay was inordinate was by
reference to ordinary standards of litigation (O’Carroll
& Anor v EBS Building Society & Anor 201 IEHC
0). The court focused on the periods of delay from
issue of proceedings and found them to be inordinate.
The court then examined whether the delay could
be excusable and whether there was a reasonable or
credible explanation for the delay (O’Connor v John
Player & Sons Ltd 200 2 ILRM 21). The plainti ’s
replying affidavit set out a number of excuses for the
post-commencement delay including: a change in the

Summer 2018 dsba.ie
Michael Kelly is a solicitor in the commercial litigation and
dispute resolution team at Hayes Solicitors

plainti ’s solicitor; an erroneous belief that a defence
had not been served when it in fact had (the pleading
was mislaid); delay in advice on proofs from counsel
and even sta holidays The court found none of the
excuses o ered to be persuasive and found that the
post-commencement delay was inexcusable.
The court in examining whether the balance of
justice lay in favour of granting of the order identified
two issues to be examined: (1) anything which militates
against the court exercising its discretion and (2)
potential prejudice to the defendants’ capacity to
defend the action in a way that a fair trial could not
now be held.
The plainti alleged delay and ac uiescence on the
part of the defendants. The court found the longest
period of delay was four months and attributed little
weight to same.
With regard to prejudice to the defendants the court
focused on three issues:
(1) A phone call alleged to have taken place between
the plainti ’s wife and the second named
defendant in September 200 . There was no note
evidencing this call and so its contents and indeed
whether the call took place would be a matter of
significant dispute.
(2) Whether at the time the second named defendant
was aware of the plainti ’s family medical history.
This would involve an examination of the second
named defendant as to knowledge he allegedly
possessed some ten years before.

This would be extremely difficult to prove in the
absence of documentary evidence of which there
was none.
( ) The availability of the plainti ’s medical records.
The plainti claimed the records were likely still
available but had not taken up copies of same.
The court focused on the potential issues arising
from the phone call. The call is alleged to have taken
place some ten years before the motion issued on
an unspecified date in September 200 . The court
acknowledged this call was central to the defence and
acknowledged the potential difficulties in defending
an action which hinged on whether a phone call was
made on an unspecified date more than ten years prior
to the date of trial. It is accepted that where matters at
issue are not, or are not fully covered by documentary
evidence, there is a greater likelihood of prejudice
resulting from the delay.
The court accepted striking out a motion for delay
was a draconian step however, it deemed it appropriate
in this case due to the potential prejudice to the
defendants’ ability to defend the proceedings.
In examining excuses for the delay the court made it
clear that while the delay could have been blamed on
the plainti ’s legal team they must be viewed as being
within the plainti ’s control. Therefore it is essential
that all plainti s remain in regular contact with their
legal teams to ensure their cases are being progressed
in a timely manner or they could face their claims
being struck out for want of prosecution. P

Litigation

It is accepted
that where
matters at
issue are not,
or are not fully
covered by
documentary
evidence, there
is a greater
likelihood
of prejudice
resulting from
the delay

the Parchment 41

42 the Parchment

Summer 2018 dsba.ie
Kevin O’Higgins is principal of Kevin O’Higgins Solicitors, Blackrock. He
is a former President of the DSBA and former Editor of the Parchment

A Day in the Life of.....

Legal and
Political Gold
This edition of “A day in the Life” goes somewhat left of field. Yes
the subject matter is a corporate lawyer who plied his trade in one
of our large offices and someone who has strutted his stu in that
environ. Yet alongside that role, he has heavily involved himself
in civic society, ultimately managing a political party. Kevin
O’Higgins met with Brendan Heneghan, recently retired from
William Fry and found his life story and how he fills his day now
as being both unique and fascinating

B

rendan Heneghan has been a
corporate lawyer par excellence
for three decades. Still in his
0s, single and recently retired,
Brendan now has the time, space
and energy to devote to his diverse interests,
none more so than political activism – that
is activism with a small ‘p’ for Brendan
would never seek elected political office in
the conventional sense, but rather political
engagement in the sense of backroom activity,
campaigning and mentoring of existing and
prospective candidates for election.
Brendan has had a stellar legal career. A
William Fry “lifer” he joined the firm in 1 8
and ultimately moved to the corporate law
department of the firm, engaging in high
profile work including plc work for the likes of
Esat, Irish Life, Irish Ropes, Green Property,
Woodchester, as well as significant venture
capital work.
“Every day was di erent. No deal went
to a pre-ordained plan and the trick was to
plan for the unexpected.” It made for an
interesting professional life where his technical
excellence allied to superb organisational
ability, meant deals (in which he was at the
helm) ran smoothly most of the time and for
that he generously credits others on his team,
who in more recent years would have included
Stephen Keogh, Shane O’Donnell, Eoin
Caulfield and former DSBA Council member
Carol Eager.
Brendan became a partner after a mere

Every day was
di erent. No deal
went to a pre-ordained
plan and the trick
was to plan for the
unexpected

five years in the firm and was elected to the
management committee in William Fry from
2002 for a six-year period. This is the highpowered group which runs the firm chaired by
the managing partner. During Brendan’s time
in the firm he served under Houghton Fry,
Neville O’Byrne, the late Owen O’Connell,
Brendan Cahill and Myra Garrett. It made
for a busy working week on top of his normal
corporate work and added up to an additional
20 hours a week. He took on responsibility for
the firm’s IT systems and educational training.
From a DSBA point of view Brendan also
somehow found time to assist the Association
with CPD’s on commercial law matters, gave
his time generously, but particularly o ered his
expertise in precedent creation particularly as
regards the DSBA specimen Share Purchase
Agreement. The availability of this document,
painstakingly put together, has been a godsend
to many a small-to-medium sized firm as it has
meant that deals which might otherwise have
been lost to the smaller firm can be held on
by the utilisation of the precedent which the
larger offices are happy to use knowing that it
has been carefully and fairly drafted.
But parallel to this high octane corporate
work was Brendan, the political operative.
Smoke-filled rooms are from another era but
Brendan became fascinated by the political
process. He got involved with Fine Gael in
his constituency of Dublin Bay South from
an early age, moving from branch level to
constituency officership to chairman of the
the Parchment 43

“I’m o to help out a
Democratic candidate, Sam Bell,
in the forthcoming elections in
the Rhode Island Senate”
constituency. Allied with this were stints as
Director of Elections in both local and general
elections where the real decisions are made as
to electoral strategy and tactics.
The political heavyweights then in his
constituency were Garret FitzGerald, Ruair
Quinn, and later Michael McDowell. The 1
General Election famously became a slug fest
between McDowell and John Gormley where
the count lasted seven days and Brendan would
have been in the thick of it monitoring the
movement of the votes of the second Fine
Gael candidate Joe Doyle whose ,88 votes
ultimately elected John Gormley.
Meanwhile, Brendan was participating at
a national level for Fine Gael as an elected
member of its governing body – e ectively the
body that makes the political decisions relating
to electoral strategy, who should run, how
many candidates, who should be supported
and so on.
44 the Parchment

In fact he served on this body over a 20-year
period overseeing the John Bruton leadership,
then the short-lived Michael Noonan period
and ultimately to the Enda Kenny reign. He
attributes Kenny as having grabbed the party
by the scru of the neck organisationally upon
becoming leader in 2002 and making it the
formidable operation it became, resulting in
its stunning success in 2011. In fact, Brendan
chaired this body in the early Kenny years, so
played a key role in the implementation of the
changes that Kenny re uired.
Is it any wonder therefore that now retired
since 201 Brendan has immersed himself
in one of his passions as a psephologist. In
Secrets of the Ballot Box written by Brendan and
just published, he explores how our electoral
system works. He does this using an analysis
of all elections and referenda fought between
1 81 and 201 . He explores why transfers,
despite the emphasis on them, particularly

by the media, are relatively ine ective; which
of the bigger multi-seat areas give rise to a
disproportionate number of anomalous results;
the relative ease of winning half the seats in a
constituency or area with an uneven number
of seats; why our electoral system makes it
very difficult for any one particular political
grouping to exceed 0 seats; the mysteries of
the tally; how it is possible to top the poll in an
election yet not be elected; and why Dublin in
particular, is where contentious referenda are
won or lost.
His book is an essential guide for anyone
who wants an understanding as to how our
unique system of proportionate representation
works. It is a system pretty uni ue to Ireland
and as a nation we love the theatre that goes
with it, despite the long counts.
As Enda Kenny said at the launch of
Brendan’s book “The Irish electorate is
fascinated with elections, not just about the
issues of the day, not just about the mood of
the time, but about the parties, personalities,
and individuals involved. Candidates stand or
fall, survive or vanish, emerge or decline by
those electoral outcomes. That’s where this
book thrives.”
But Brendan’s passion for elections is
not just confined to this country. Far from
it. He was an early evangelist for the future
President Barack Obama and worked on
his campaign. In fact he worked on both his
presidential electoral con uests. Likewise,
he helped out in the ill-fated Hillary Clinton
campaign basing himself in Pennsylvania and
Philadelphia where he recalls, being given a
dossier of Irish names to follow up on and was
struck by how connected the diaspora is still,
to the “old sod”. He has campaigned for the
SDLP in Northern Ireland and in the most
recent General Election in the UK in 201 , he
devoted three weeks in assisting the ultimately
successful Irish born MP, Conor McGinn of
the Labour Party to secure his seat as MP for
the constituency of St Helen’s North.
Yet Brendan also finds time to serve
as treasurer with the St incent de Paul
Conference in the north inner city and is
an active board member of Lyric Opera
Productions which seeks to o er the delights
of opera in a less stu y manner and within the
reach of everyone.
So as I conclude my chat with Brendan he
tells me that he’s o to the United States in
the morning to which I ask – holiday “Nope”
he says, “I’m o to help out a Democratic
candidate, Sam Bell, in the forthcoming
elections for District in the Rhode Island
Senate.”
Brendan is truly a citizen of the world
– engaged, interested and willing to assist
in global democracy for the good of our
civilisation. P

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Pension
Scheme Funding
Proposals: Are
they Enforceable
Contracts?
Sonya Dixon examines a decision of Mr Justice Charleton which
stated obiter that liability for an employer could arise as a result of
a funding proposal as it could amount to a contract. Accordingly,
scheme members could then sue the employer for breach of contract

M

any defined benefit schemes remain
underfunded after the world recession
that began a decade ago. Despite the
fact that the economy is improving
globally, defined benefit schemes are
closing to new entrants or being wound up. Many
scheme members are outraged that they will not
get their full benefits as promised. Benefits under a
pension scheme can be described as deferred income
and therefore members are not getting the full
income which they have rightfully earned.
Scheme members may have a claim if trustees or
employers breach the trust deed or trust rules. If the
trustees breach their fiduciary duty in some way a
liability should arise. However the case of Greene
and Ors. v Coady and Ors. 201 1 IR 8 brought
some comfort to trustees. Unless it can be shown
that they acted in a way that no reasonable trustees
would have acted, they will not be liable for a breach
of trust.
However in this case another interesting concept
arose. Mr Justice Charleton stated obiter that scheme
members could sue the employer for breach of
contract.
A funding proposal must be submitted by trustees

46 the Parchment

to the Pensions Board when a scheme is not meeting
the statutory funding standard or funding standard
reserve. If a funding proposal is not submitted, a
section 0 direction can be given by the Pensions
Board which will reduce benefits for members. A
scheme is not meeting the funding standard if they
cannot meet their liabilities in order of statutory
priority, if a scheme were to wind up. An employer
may then pledge a certain amount to the scheme so
that it can meet the funding standard.
In correspondence between the trustees and the
company the company stated the “funding proposal
is not and was never intended to be a contract – it is a
statutorily required document that does not override the
provisions of the trust deed and rules or impose contractually
binding obligations Mr Justice Charleton stated “This
is most unconvincing but was designed so that the trustees
would not see it this way The trustees also received
legal advice to the e ect that it was arguable that the
funding proposal was binding on the company.
Mr Justice Charleton has stated obiter that in
his view it amounts to a breach of contract if it is
not met. He states In addition, there was the issue of
whether the funding proposal at €10 75m per annum
constituted a contract, the breach of which would give

Summer 2018 dsba.ie
Sonya Dixon, BL is a practising barrister
with an interest in the area of pensions

rise to an entitlement to damages on the capitalised value
mentioned above… if the circumstances in which a funding
proposal is made involve a de nite offer by the funder to
the trustees and a de nite acceptance by them and if the sum
to be paid is xed over a period of years, then the ordinary
rules of contract suggest that the solution to this issue is that
over that period an agreed sum is what the funder must pay
to the trustees on behalf of the bene ciaries The answer to
this is, however, capable of dispute Pension funds go up and
down There are good years and bad years The obligation of
the funder under the trust deed, to pay in accordance with
its terms so as to allow a de ned bene t to employees, can be
buoyed up and down with the rise and fall of the market
He then goes on to state: “While it may be said that
the vagaries of the market and the possiblity of resort to
the Pensions Act to reduce bene ts removes from a funding
proposal the binding character of a contractual obligation if
accepted, this court does not agree Where in the knowledge
of the alternative of reducing bene ts, a funder makes a
proposal for a de nite period, and this is accepted, then this
is an enforceable contract
Mr Justice Charleton therefore makes it very clear
that in his view a funding proposal can be binding on
the employers.
In Greene v Coady there was a deficit in the
pension scheme of which the plainti s were
members, amounting to approximately €100m.
The defendants in this case were the trustees of
the scheme.The Pensions Board was going to give a
section 0 direction unless a funding proposal was
submitted.
Negotiations were entered into with the company
and a funding proposal was made under which the
company was to pay €10. 2 m per annum into the
scheme for a period of 11 years. This was accepted
by the trustees and approved by the Pensions Board.
However, the deficit returned. arious options were
examined by the trustees but the overall solvency

Pension Litigation

of the company was also in doubt. It transpired
that the company was in fact unwilling to continue
contributing to the scheme. They o ered to
contribute to the deficit in the amount of € .1m
and ultimately to wind up the scheme as otherwise
the Shannon operation (Irish company in the group)
may have had to close with the loss of
jobs.
Given the threat of closure the trustees did not
make a contribution demand and accepted the o er.
The members of the scheme sued the trustees for
not making a contribution demand, alleging that this
amounted to a breach of trust and wilful default.
Presumably one of the reasons the trustees did
not attempt to sue the employer for breach of
contract on the funding proposal was the same
reason they did not make the contribution demand.
They were told by the company that if they did not
accept the o er, the Irish operation would be shut
down resulting in large amounts of job losses.
Mr Justice Charleton has left the door open for
this to be tested in the Irish courts. It is important
to note however that the specific wording of both
the funding proposal and the contribution rule
in the trust deed and the scheme rules should
be carefully examined in each case. It is another
possible option that practitioners should be aware
of when acting for scheme members in this complex
and difficult area of the law.
In circumstances where there can often be
little recourse for scheme members this may be a
welcome development where they feel that they
have been let down again and again. With the
trend for the closure of defined benefit schemes
continuing, it may only be a matter of time before
this uestion comes directly before the court.
This may result in some comfort for these scheme
members when employers have reneged on a
promise not for the first time. P

A funding
proposal must
be submitted
by trustees to
the Pensions
Board when
a scheme is
not meeting
the statutory
funding
standard
or funding
standard
reserve

the Parchment 47

In Practice

THE EUROPEAN DATA PROTECTION BOARD COMMENCES
Following the entering into force of the
General Data Protection Regulation, the
European Data Protection Board (EDPB)
began work on 2 th May 2018. This body
replaces the body formerly known as the
Article 2 Working Party, which previously
grouped the EU’s supervisory authorities, the
EDPS and the European Data Protection
Supervisor and the European Commission.
The Board is based in Brussels and its primary
role is to safeguard the consistent application
of GDPR. It also advises the European
Commission on for example, the level of
data protection o ered by third countries or
organisations outside the European Union.
It also promotes co-operation between the
national supervisory authorities and plays a
role in the conciliation process for disputes
between national supervisory authorities. It
will also issue guidelines, recommendations

and statements of best practice on di erent
topics.
The Board is comprised of the heads
of the supervisory authorities, and the
European data protection supervisors or
their representatives. The Chair is Dr Andrea
Jelinek, the head of the Austrian Data
Protection Authority. The goals for the coming
year are to provide general guidance (including
guidelines, opinions, recommendations and
best practice) on data protection law, to
adopt a consistency in decisions and opinions
in cross-border data protection cases, and
finally, to promote co-operation and e ective
exchange of information and best practice
between national supervisory authorities.
Greg Ryan, S A ice President

EU TO PRESS US FOR EXPANDED DATA SHARING DEAL
The EU Justice Chief, era Jourova, will
push for a new data access agreement with
the United States as a result of growing
transatlantic tensions over issues including the
Iranian nuclear agreement. Jourova met with
the US Attorney General, Je Sessions, in an
attempt to persuade him that the US and EU
should create an arrangement for the respective
law enforcement authorities to uickly demand
and obtain data from technology companies
based both in the US and in the EU. While
there are new legal measures on both sides of
the Atlantic which give authorities more power
to obtain data, they can only obtain that for
the purpose of investigating crimes. Jourova
wants an additional deal to speed up the data

re uests specifically in new EU legislation
which she has proposed, which would allow law
enforcement authorities to demand data within
ten days or in six hours in emergencies. This is
regardless of where the technology company is
head uartered or where it stores data.
Negotiations for this arrangement have been
ongoing since last year but were sidelined when
President Trump approved the new legislation
known as the CLOUD Act in March which
only allows for bilateral deals with individual
countries instead of with the EU voting block.
The UK has already negotiated its own
agreement with the US and Jourova wants
to avoid all 28 member countries having to
do the same thing, commenting that “for the

CENTRAL OFFICE AND COURTROOM GDPR UPDATE
As a result of the introduction of GDPR, the
Central Office has introduced some changes.
Judgement sets must now be presented in
an envelope. When looking at the judgment
register, “privacy” swinging doors have been
introduced with a sign indicating that only
authorised personnel are entitled to view the
register at a particular time.
In relation to papers being left in
courtrooms during recess/lunch breaks, the
Courts Service does not have a policy of
locking courtrooms during lunch time as it
would impose too much of a burden on sta
48 the Parchment

who have to continue their duties during
lunch break and cannot wait around for
practitioners to vacate a particular courtroom.
Of course there will be exceptions and court
sta will assist where possible. It is essential
that barristers and solicitors make sure they
do not leave unattended documents in court.
Documents are also being left in the solicitors’
rooms in the Four Courts and this may have
implications if the documentation is accessed
subse uently.
arra O’Cochlain, S A Litigation Committee

rest of Europe we want a unified harmonised
approach”.
The US Administration does have some
difficulties in agreeing a deal as there are
restrictions in the CLOUD Act which would
have to be overcome first. Further the fast
track system will bypass current data exchange
treaties between the justice ministries
which have been criticised for being overly
bureaucratic and time consuming.
Negotiations on the draft EU legislation
have not yet commenced.
Greg Ryan, S A ice President

LITIGATION UPDATE
Litigation practitioners please note the
following.
1. As of November 201 , a plenary
summons can be served on an individual
by registered post as well as personal
service.
2. The Circuit Court office will not
accept an affidavit of verification of a civil
summons at the time of issue. That should
be filed within two weeks of issuing.
arra O’Cochlain, S A Litigation
Committee

Summer 2018 dsba.ie

News

Photography: Paul Sherwood

Irish Law Awards 2018

In House Legal Team of the Year recipients Cluid Housing (left to right) Lydia Mullane, Orla Cleary,
Lorraine Nolan and Julie Doyle

Solicitor of the Year 2018 Stuart Gilhooly (left) with Sean O’Carroll,
Medlaw, sponsors; and Miriam O’Callaghan

There was much celebration at the Irish
Law Awards 2018 which were held in May.
The Parchment and the DSBA are very
proud of a number of winners at the awards
ceremony including two former editors of the
Parchment.
Stuart Gilhooly won the Solicitor of the
Year award. The Harold’s Cross litigator and
former President of both the DSBA and
Law Society scooped the top prize. A former
editor of the Parchment and long running
columnist of The Closing Argument and Cross
Examination interviews in this publication,
we congratulate Stuart for his tremendous
win and wish him and his colleagues at H.J.
Ward & Co continued success.
Crumlin-based Keith Walsh had two
awards to pick up on the night. He won
Dublin Family Law Firm of the Year and Family
Lawyer of the Year. Also a former editor of
this publication and former President of
the DSBA, Keith deserves great credit for
being one of the country’s foremost family
law practitioners and being a colleague who
is only too happy to assist those who need
some advice or a steer.
Julie Doyle, head of legal at Cluid Housing
lifted the In House Legal Team of the Year award
on behalf of her colleagues in the Cluid
Housing team. Julie who has been a key
member of the Parchment committee for the
past few years had joined Cluid earlier in the
year from Beauchamps.
Our congratulants to Stuart, Keith and
Julie and indeed all the winners at the recent
awards ceremony in Dublin.

Family Lawyer of the Year 2018 Keith Walsh

the Parchment 49

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Summer 2018 dsba.ie

News

Mental
Health
Seminar

Judge Gráinne
O’Neill – A Tribute
My first appearance before Judge Gr inne O’Neill was back in 201 . My
colleague Dara Robinson, solicitor, had known her in practice and believed
that she was a very good appointment, which certainly proved to be the case.
What was most impressive about Judge Gr inne O’Neill was her judiciousness
and sound judgment, which was always provided under the pressurised time
limits that members of the judiciary find themselves in, in the District Court.
I remember one particular assault case that Judge Gr inne O’Neill had
to contend with, whilst sitting in Limerick District Court, for which her
reasoning when passing judgement was an indepth lesson on how evidence
should be listened to and discerned upon before providing a decision.
On another occasion on a Friday summer’s afternoon when everyone in
court could only think about getting away from the pressures of work, Judge
Gr inne O’Neill was sitting in Court 1 in the CCJ, when Michael Finucane,
solicitor, arrived to say that an international convention of ministers for justice
was due to take place in Dublin that weekend, and that he had instructed
senior counsel to make an application for an arrest warrant for the Minister
for Justice from a country that I shall not name to ease pressure on the editor,
in respect of torture committed on his client, who had been granted asylum
in Ireland. The application could easily have been passed on to another court
and one would’ve thought it would certainly have been the side step to take.
However, Judge Gr inne O’Neill with a wry smile and cutting look to Mr
Finucane indicated that she would gladly take the matter up and listen to the
application as the glorious day streamed through the window.
Judge Gr inne O’Neill’s sharp-tongued wit was acclaimed and would put
Lord Edmund Blackadder to shame. The tales of Judge Gr inne O’Neill’s
timing, put downs and a ability o the bench were renowned and referred to
in The Irish Times on th June 2018.
Judge Gr inne O’Neill is survived by her father Terry; her brother Olaf;
sister Fiona; sister-in-law Christina; brother-in-law Alan; nephews Harry and
Simon and many friends. All members of the DSBA would like to pass on their
condolences to the family and friends of Judge Gr inne O’Neill who was taken
from us so early in life, with so much to give and o er.
Ar dheis D go raibh a anam.
Richard Young

The DSBA Mental Health and Capacity Committee
hosted a packed seminar with the Irish Mental Health
Lawyers’ Association on 2 th of June last in the offices
of the Mental Health Commission. Mr Justice Hogan
kindly presented at the seminar despite his extremely
busy schedule, and the committee want to take this
opportunity to extend our thanks to him.
The seminar focused on a review and update of
recent developments in Mental Health Law. With 2018
seeing considerable developments in mental health
case law, and with significant decisions from the Court
of Appeal including judgments dealing with the status
of the voluntary patient PL v Clinical irector of St
Patrick’s University ospital 201 IECA 29 ; the rights of
patients in taking Circuit Court Appeals IF v Mental
ealth Tribunal 201 IECA 101 ; and also a significant
finding in the case of A -v- The Clinical irector of St
Loman’s ospital & Ors 201 IECA 123, that Section
1 ( ) of the Mental Health Act is unconstitutional,
having regard to the length of the term of detention,
involving a patient who was detained on a 12-month
order.
The speakers included Orla Keane, Director of
Tribunals, Mental Health Commission, dealing with
amendments to the Mental Health Act 2001; Katherine
Kelleher, solicitor, dealing with children involuntarily
detained under the Mental Health Act; Niall Nolan, BL
on recent case law and solicitor Tony Carmody on the
IF case. The seminar was chaired by Joan Doran, Chair
of the Mental Health and Capacity Committee.
Aine ynes

Aine Hynes, Mr Justice Gerard Hogan and Joan Doran
the Parchment 51

News

Belfast Solicitors’
Association Tripartite
Golf Event
The Dublin Solicitors’ Bar Association
was invited to Belfast on 1 th May last to
take part in a tripartite golf event with the
Belfast Solicitors’ Association (BSA) and the
Liverpool Law Society.
The event was hosted by the BSA at at
Malone Golf Club in south Belfast.
The claret silver jug in the photograph is
the new BSA/DSBA/Liverpool Law Society
tripartite golf trophy. According to DSBA
President Robert Ryan, the event was a great

Friday 2 th June 2018 saw the second annual
John F Buckley cricket match between the
DSBA and the Bar Council of Ireland at
Leinster Cricket Club in Rathmines.
The match was a much closer a air than
the inaugural match played in June 201 .
The DSBA team chose to bat first and
posted a respectable target of 108 runs o 20
overs. There were some fine individual displays
of batting by the DSBA with Jody Toner
(Walkers), Timmy McDowell (Beauchamps)
and Aidan Buckley (guest player and son of
the late John F Buckley) showing particular
skill. Nicolette Lennox showed some great
shot selection and was unlucky to be run out
(no blame is attached to Tony O’Sullivan of
Beauchamps ).
The Bar Council raced towards the target
with Niall Buckley, son of the late John F
Buckley showing no mercy to early bowlers.
The middle order for the Bar Council were
not expecting the DSBA to have such strength
52 the Parchment

in depth from their bowlers and the pace of
scoring slowed down as the sun began to set
over Rathmines.
As the Bar Council reached 100 their
players who were yet to bat, were seen to
retreat to the bar and there were reports of
one or two getting a head start on the curry.
Despite the friendly nature of the match the
DSBA decided to unleash their secret weapon,
spin bowler Mark Bergin of O’Connor Bergin
Solicitors. Wickets fell in uicker than Dave
Staunton and other members of the Bar could
get their pads on. Reminiscent of court,
the barristers seemed to think they could be
in two places at the same time The DSBA
appeared to have dealt a psychological blow.
The fall of late wickets with the target so close
ensured a tense and thrilling finish. The Bar
Council managed to regain their composure
and reach the magic number of 10 .
For a second year in succession the Bar
Council won but perhaps the seeds of doubt

have been sown, it might be suggested that next
year’s match will be an even closer run a air.
The players and spectators met on the pitch
after the match where the John F Buckley
trophy was presented to the Bar Council of
Ireland and both Dave Staunton on behalf of
the Bar Council and Robert Ryan on behalf of
the DSBA said a few words in tribute to the
late John F Buckley. Claire Buckley, the wife
of John F Buckley was in attendance with her
daughter Orla Buckley of Beauchamps together
with players Niall and Aidan Buckley and their
families.
Curry and drinks were served in the
clubhouse afterwards with a special thanks
to Niall Carroll and all the members and
sta of Leinster Cricket Club for their warm
hospitality.
A little known fact about the venue is that
Leinster Cricket Club hosted the first ever Irish
rugby international in 18 .
Matthew enny, S A Council

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DSBA Property and Licensing Seminar

The DSBA Property
Committee hosted a CPD
seminar on 5th July 2018. The
seminar was entitled Licenced
Premises and Conveyancing;
Annual licensing Court and
the DSBA Precedent Letting
Agreement.
Speakers at the event were
Constance Cassidy, SC and
Tony O’Sullivan, Beauchamps.

The DSBA Practice
Management seminar
was held in April 2018.
The seminar was entitled
Mandatory Regulation.
Speakers at the event
were Fiona Stanley, Law
Society; Aidan Clifford,
ACCA Ireland; Brendan
Savage, BL. The seminar
was chaired by Niall Cawley,
solicitor.

The DSBA Practice
Management Committee
hosted a CPD seminar
on 22nd May 2018. The
seminar dealt with GDPR
and its implications for
the running of a solicitor’s
practice; an update on
changes to standard
professional indemnity
insurance conditions; and
cyber security issues and
advices.
Speakers at the event
were Matthew Austin,
Hayes Solicitors; Richard
Hammond, Hammond Good
Solicitors and Fergal Mawe,
Law Society.

For bookings and more information
please contact maura@dsba.ie or
Tel: 01 670 6089.

the Parchment 59

DSBA Midsummer’s Party and Law Book Awards

The DSBA midsummer
party and 5th Annual
DSBA Law Book Awards
took place at the Conrad
Hotel, Earlsfort Terrace
on 22nd June 2018.
Guest of honour was Mr
Justice Gerard Hogan of
the Court of Appeal. For
a full report on the Law
Book Award winners, go
to pages 24-26.

The DSBA hosted the John F
Buckley Memorial Cup cricket
match between a Bar Council
Select 11 and a DSBA select
11 at the Leinster Cricket
Club, Rathmines on 29th June
2018.
The DSBA would like to thank
the Leinster Cricket Club for
hosting this fantastic event. A
superb day was had by all.

The courts have
become swamped with
lay litigants and their
McKenzie Friends

The Law of
Unintended
Consequences

Y

ears ago I wrote to The Irish
Times fulminating about the
prevalence of dog droppings
upon the pavements of Dublin.
The late Kevin Feeney, SC (this
was prior to his appointment to the High
Court bench), a renowned wit, raised the
matter with me:
KF: “I hear you wrote to The Irish Times
about dog droppings!”
Me: “I did.”
KF: “Are you for them or against them?!”
Thus, Kevin demonstrated with a deft
satiric touch, how anyone who speaks
publicly about a given topic must be
prepared to accept that his or her comments
will often not be understood in the manner
intended. So it is with some trepidation that
I venture to speak about lay litigants in civil
litigation matters and the sheer numbers
of them involved in cases of almost every
possible description. Lay litigants and their
supporters (known as McKenzie Friends)
are now a substantial feature of the courts
landscape. Our seriously under-resourced
and over-stretched courts system is ill-suited
to their needs. What can be done to assist
matters I also think that we have to ask the
uestion – why are there now so many lay
litigants?
When I speak with English colleagues,
they are invariably surprised that most Irish
personal (as opposed to commercial) civil
litigation is undertaken by lawyers on a no
foal/no fee’ basis. If the claimant has a case
that has any reasonable prospect of success,
then he or she will invariably find a solicitor
and counsel willing to act in the matter on
this basis. This arrangement is tried and
tested, and is not champertous. It is the
only viable alternative to the e ective nonexistence of civil legal aid for such matters.
No foal/no fee’ work is, in my opinion, not

64 the Parchment

pro bono work in any real sense although it is
sometimes held out as such.
I understand that the number of practising
solicitors in Ireland is now circa 10,000. The
latest edition of the Law Directory is so bulky
that it could cause serious injury if ung
at a colleague There is an ever-increasing
number of solicitors and barristers chasing an
apparently ever-decreasing supply of work.
This means that a very sizeable percentage of
persons with a sound case (be they claimants
or defendants) will have a reasonable
prospect of obtaining representation on a
no foal/no fee’ basis. In other words, the
litigation is going to cost them nothing, or
very little. The lawyers will carry the costs
of running the case, the solicitors regularly
funding the claimants’ outlays, often to the
tune of several thousand euros. Prospective
litigants who do not have sustainable cases
will find it hard to obtain no foal/no fee’
legal representation. The market is delivering
to them a message which is undoubtedly
harsh, but nevertheless realistic. I long ago
came to the conclusion that the viability of
any legal business depends as much on the
cases that one turns away as the cases that
one agrees to act in. Time and again I find
myself saying “No” to potential clients who
have no case whatsoever and, something
that really vexes me, who have occasionally
been referred to me by colleagues who would
rather not give the necessary frank advice. I
think that there are few greater discourtesies
to a colleague than this type of referral. I
suspect that many rejected cases are being
run before the courts by lay litigants.
I have always been struck by the
hospitality which is correctly enjoyed by
lay litigants before the courts. For as long
as anybody can remember, the courts and
courts’ sta have been extraordinarily
patient with and helpful to lay litigants. Even

the most trying, misguided and vexatious
lay litigants have had the benefit of almost
boundless courtesy and respect. And rightly
so. Everybody is entitled within reason, to
prosecute or defend their own cause and to
freely access the courts for the purpose of
vindicating their rights. It is only in the
most exceptional cases that the courts will
upon re uest, and with great reluctance,
impose Isaac Wunder orders re uiring serial
litigants to desist from issuing litigation
unless they first obtain permission from the
court to do so.
The ease with which civil litigation can be
commenced and the kindness shown to lay
litigants by the judiciary over the years has
had unintended conse uences. The courts
have become swamped with lay litigants and
their McKenzie Friends. In relation to the
latter, it is notable that the Court of Appeal,
the High Court and the Circuit Court have
had to issue practice directions in an e ort
to stop non-lawyers conducting cases on
behalf of clients’ and specifically, forbidding
from acting as McKenzie Friends former
solicitors who have been struck o the roll of
solicitors for professional misconduct.
What can be done about this state of
a airs Perhaps the establishment of a
division in each court which deals specifically
with claims which are driven or defended
by lay litigants, with customised Courts
Service support The Bar Council’s recent
submission to the Review Group on the
Administration of Civil Justice contains
some excellent suggestions as to how lay
litigants and their McKenzie Friends might
be better assisted to the benefit of all
concerned. I know that the Law Society
of Ireland will also be putting forward
submissions to the Review Group (or
perhaps has already done so ) addressing
this general topic. P

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